1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA
9 Fornix Holdings LLC, et al., No. CV-22-00494-PHX-DLR
10 Plaintiffs, DEFAULT JUDGMENT
11 v.
12 Unknown Party, et al.,
13 Defendants. 14 15 Plaintiffs Fornix Holdings LLC and CP Productions, Inc. bring this action against 16 Defendants Emre Temiz and Tucows, Inc. for willful copyright infringement. (Doc. 11.) 17 Despite being served, Defendants failed to appear or respond, so the Clerk entered default 18 against them. (Docs. 56, 60.) Plaintiffs now move for entry of default judgment in the form 19 of a permanent injunction, $3,900,000 in statutory damages, and attorney fees and costs. 20 (Doc. 61.) The motion is granted. 21 Whether to enter a default judgment is discretionary. Aldabe v. Aldabe, 616 F.2d 22 1089, 1092 (9th Cir. 1980). The Court may consider the following factors when deciding 23 whether default judgment is appropriate: (1) the possibility of prejudice to the plaintiff, (2) 24 the merits of the claims, (3) the sufficiency of the complaint, (4) the amount of money at 25 stake, (5) the possibility of factual disputes, (6) whether default is due to excusable neglect, 26 and (7) the policy favoring decisions on the merits. See Eitel v. McCool, 782 F.2d 1470, 27 1471-72 (9th Cir. 1986). In considering the merits and sufficiency of the complaint, the 28 Court accepts as true the complaint’s well-pled factual allegations. See Geddes v. United 1 Fin. Grp., 559 F.2d 557, 560 (9th Cir. 1977). Although the Court should consider and 2 weigh relevant factors as part of the decision-making process, it “is not required to make 3 detailed findings of fact.” Fair Housing of Marin v. Combs, 285 F.3d 899, 906 (9th Cir. 4 2002). 5 Having reviewed Plaintiffs’ motion, the Court finds the relevant factors favor entry 6 of default judgment. If default judgment is not granted, Plaintiffs “will likely be without 7 other recourse for recovery.” PepsiCo, Inc. v. Cal. Sec. Cans, 238 F. Supp. 2d 1172, 1177 8 (C.D. Cal. 2002). Taking the allegations in the complaint as true, Plaintiffs have alleged 9 meritorious willful copyright infringement claims. Indeed, the Court previously granted 10 Plaintiffs a preliminary injunction and, in so doing, found Plaintiffs were likely to succeed 11 on the merits of their claims. (Docs. 21, 30.) There likely are no genuine factual disputes 12 that would preclude granting the motion. There is no evidence that Defendants defaulted 13 due to excusable neglect. Although the amount at stake is substantial, that amount is 14 attributable to the significant number of copyrighted works Defendants have infringed. To 15 their credit, Plaintiffs are seeking only $30,000 in damages per infringed work, which is 16 on the lower end of the range authorized by statute. See 17 U.S.C. § 504(c) (authorizing up 17 to $150,000 per infringed work in cases of willful infringement). And although cases 18 “should be decided on their merits whenever reasonably possible” Eitel, 782 F.2d at 1472, 19 the existence of Federal Rule of Civil Procedure 55(b) “indicates that this preference, 20 standing alone, is not dispositive.” PepsiCo, 238 F. Supp. 2d at 1177 (citation omitted). 21 Accordingly, for the reasons articulated in Plaintiffs’ motion, 22 IT IS ORDERED that Plaintiffs’ motion for default judgment (Doc. 61) is 23 GRANTED as follows: 24 1. Plaintiffs’ have valid and enforceable copyrights in the audiovisual works 25 provided in Doc. 61-2 (“Copyrighted Works”). 26 2. Defendant Temiz has committed and continues to commit the following acts: 27 a. Registered the domain names , 28 , and 1 (“Domain Names”) to operate a website, “Cum Swallowing Movies” 2 (“Infringing Website”), for the below-described acts; 3 b. Unlawfully creating unauthorized copies of the Copyrighted Works for 4 further unauthorized display and distribution via the Infringing Website; 5 c. Unlawfully publicly displaying and/or authorizing others to publicly 6 display still frames of the Copyrighted Works on the Infringing Website; 7 d. Unlawfully reproducing and distributing and/or authorizing others to 8 reproduce and distribute Plaintiffs’ Copyrighted Works; 9 e. Promoting the availability of Plaintiffs’ Copyrighted Works through the 10 Infringing Website; and 11 f. Continuing the acts detailed in ¶¶ (a)-(e) above after receiving notice of 12 infringement from Plaintiffs, after the commencement of this action, and 13 after and in violation of the preliminary injunction entered in this action 14 (Doc. 30). 15 3. Defendant Temiz’s acts constitute direct infringement of Plaintiffs’ Copyrighted 16 Works in violation of the Copyright Act, 17 U.S.C. § 101 et seq. 17 4. Defendant Temiz shall pay damages to Plaintiffs in the amount of $3,960,000. 18 5. Plaintiffs may move for attorney fees and costs in a manner that complies with 19 LRCiv 54.2. 20 6. Defendant Temiz, and all officers, agents, servants and employees, and all those 21 persons or entities acting in active concert or participation with Temiz, and all 22 persons and entities who receive actual notice of this order, are immediately and 23 permanently enjoined from engaging in any of the following activities: 24 a. Storing, reproducing, displaying, or distributing any Copyrighted Works; 25 b. Transmitting, retransmitting, assisting in the transmission of, requesting 26 transmission of, streaming, hosting or providing unauthorized access to, 27 or otherwise publicly performing, directly or indirectly, by means of any 28 device or process, Plaintiffs’ Copyrighted Works; 1 c. Selling, advertising, marketing, or promoting any Copyrighted Works; 2 d. Creating, operating, maintaining, or managing any website in support of 3 the activities described in ¶¶ (a)-(c); 4 e. Registering, owning, receiving, or transferring any domain name in 5 support of the activities described in ¶¶ (a)-(d); 6 f. Creating or providing assistance to others who wish to engage in the 7 activities described in ¶¶ (a)-(e). 8 7. Defendant Temiz is further immediately and permanently enjoined from: 9 a. Advertising or promoting unauthorized access to or the availability of 10 Plaintiffs’ Copyrighted Works; 11 b. Encouraging or soliciting others to transmit or reproduce Plaintiffs’ 12 Copyrighted Works; 13 c. Encouraging or soliciting others to upload, post or index any files that 14 constitute, correspond, point or lead to any of Plaintiffs’ Copyrighted 15 Works; 16 d. Encouraging or soliciting others to offer transmission of Plaintiffs’ 17 Copyrighted Works; 18 e. Providing technical assistance, support services or servers to others 19 engaged in infringement of, or seeking to infringe, Plaintiffs’ 20 Copyrighted Works; 21 f. Creating, maintaining, highlighting or otherwise providing access to lists 22 or forums that include, refer to or signal the availability of Plaintiffs’ 23 Copyrighted Works; 24 g. Including references to Plaintiffs’ Copyrighted Works in any promotional 25 materials; and 26 h. Creating, maintaining or providing access to the Infringing Website. 27 8.
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1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA
9 Fornix Holdings LLC, et al., No. CV-22-00494-PHX-DLR
10 Plaintiffs, DEFAULT JUDGMENT
11 v.
12 Unknown Party, et al.,
13 Defendants. 14 15 Plaintiffs Fornix Holdings LLC and CP Productions, Inc. bring this action against 16 Defendants Emre Temiz and Tucows, Inc. for willful copyright infringement. (Doc. 11.) 17 Despite being served, Defendants failed to appear or respond, so the Clerk entered default 18 against them. (Docs. 56, 60.) Plaintiffs now move for entry of default judgment in the form 19 of a permanent injunction, $3,900,000 in statutory damages, and attorney fees and costs. 20 (Doc. 61.) The motion is granted. 21 Whether to enter a default judgment is discretionary. Aldabe v. Aldabe, 616 F.2d 22 1089, 1092 (9th Cir. 1980). The Court may consider the following factors when deciding 23 whether default judgment is appropriate: (1) the possibility of prejudice to the plaintiff, (2) 24 the merits of the claims, (3) the sufficiency of the complaint, (4) the amount of money at 25 stake, (5) the possibility of factual disputes, (6) whether default is due to excusable neglect, 26 and (7) the policy favoring decisions on the merits. See Eitel v. McCool, 782 F.2d 1470, 27 1471-72 (9th Cir. 1986). In considering the merits and sufficiency of the complaint, the 28 Court accepts as true the complaint’s well-pled factual allegations. See Geddes v. United 1 Fin. Grp., 559 F.2d 557, 560 (9th Cir. 1977). Although the Court should consider and 2 weigh relevant factors as part of the decision-making process, it “is not required to make 3 detailed findings of fact.” Fair Housing of Marin v. Combs, 285 F.3d 899, 906 (9th Cir. 4 2002). 5 Having reviewed Plaintiffs’ motion, the Court finds the relevant factors favor entry 6 of default judgment. If default judgment is not granted, Plaintiffs “will likely be without 7 other recourse for recovery.” PepsiCo, Inc. v. Cal. Sec. Cans, 238 F. Supp. 2d 1172, 1177 8 (C.D. Cal. 2002). Taking the allegations in the complaint as true, Plaintiffs have alleged 9 meritorious willful copyright infringement claims. Indeed, the Court previously granted 10 Plaintiffs a preliminary injunction and, in so doing, found Plaintiffs were likely to succeed 11 on the merits of their claims. (Docs. 21, 30.) There likely are no genuine factual disputes 12 that would preclude granting the motion. There is no evidence that Defendants defaulted 13 due to excusable neglect. Although the amount at stake is substantial, that amount is 14 attributable to the significant number of copyrighted works Defendants have infringed. To 15 their credit, Plaintiffs are seeking only $30,000 in damages per infringed work, which is 16 on the lower end of the range authorized by statute. See 17 U.S.C. § 504(c) (authorizing up 17 to $150,000 per infringed work in cases of willful infringement). And although cases 18 “should be decided on their merits whenever reasonably possible” Eitel, 782 F.2d at 1472, 19 the existence of Federal Rule of Civil Procedure 55(b) “indicates that this preference, 20 standing alone, is not dispositive.” PepsiCo, 238 F. Supp. 2d at 1177 (citation omitted). 21 Accordingly, for the reasons articulated in Plaintiffs’ motion, 22 IT IS ORDERED that Plaintiffs’ motion for default judgment (Doc. 61) is 23 GRANTED as follows: 24 1. Plaintiffs’ have valid and enforceable copyrights in the audiovisual works 25 provided in Doc. 61-2 (“Copyrighted Works”). 26 2. Defendant Temiz has committed and continues to commit the following acts: 27 a. Registered the domain names , 28 , and 1 (“Domain Names”) to operate a website, “Cum Swallowing Movies” 2 (“Infringing Website”), for the below-described acts; 3 b. Unlawfully creating unauthorized copies of the Copyrighted Works for 4 further unauthorized display and distribution via the Infringing Website; 5 c. Unlawfully publicly displaying and/or authorizing others to publicly 6 display still frames of the Copyrighted Works on the Infringing Website; 7 d. Unlawfully reproducing and distributing and/or authorizing others to 8 reproduce and distribute Plaintiffs’ Copyrighted Works; 9 e. Promoting the availability of Plaintiffs’ Copyrighted Works through the 10 Infringing Website; and 11 f. Continuing the acts detailed in ¶¶ (a)-(e) above after receiving notice of 12 infringement from Plaintiffs, after the commencement of this action, and 13 after and in violation of the preliminary injunction entered in this action 14 (Doc. 30). 15 3. Defendant Temiz’s acts constitute direct infringement of Plaintiffs’ Copyrighted 16 Works in violation of the Copyright Act, 17 U.S.C. § 101 et seq. 17 4. Defendant Temiz shall pay damages to Plaintiffs in the amount of $3,960,000. 18 5. Plaintiffs may move for attorney fees and costs in a manner that complies with 19 LRCiv 54.2. 20 6. Defendant Temiz, and all officers, agents, servants and employees, and all those 21 persons or entities acting in active concert or participation with Temiz, and all 22 persons and entities who receive actual notice of this order, are immediately and 23 permanently enjoined from engaging in any of the following activities: 24 a. Storing, reproducing, displaying, or distributing any Copyrighted Works; 25 b. Transmitting, retransmitting, assisting in the transmission of, requesting 26 transmission of, streaming, hosting or providing unauthorized access to, 27 or otherwise publicly performing, directly or indirectly, by means of any 28 device or process, Plaintiffs’ Copyrighted Works; 1 c. Selling, advertising, marketing, or promoting any Copyrighted Works; 2 d. Creating, operating, maintaining, or managing any website in support of 3 the activities described in ¶¶ (a)-(c); 4 e. Registering, owning, receiving, or transferring any domain name in 5 support of the activities described in ¶¶ (a)-(d); 6 f. Creating or providing assistance to others who wish to engage in the 7 activities described in ¶¶ (a)-(e). 8 7. Defendant Temiz is further immediately and permanently enjoined from: 9 a. Advertising or promoting unauthorized access to or the availability of 10 Plaintiffs’ Copyrighted Works; 11 b. Encouraging or soliciting others to transmit or reproduce Plaintiffs’ 12 Copyrighted Works; 13 c. Encouraging or soliciting others to upload, post or index any files that 14 constitute, correspond, point or lead to any of Plaintiffs’ Copyrighted 15 Works; 16 d. Encouraging or soliciting others to offer transmission of Plaintiffs’ 17 Copyrighted Works; 18 e. Providing technical assistance, support services or servers to others 19 engaged in infringement of, or seeking to infringe, Plaintiffs’ 20 Copyrighted Works; 21 f. Creating, maintaining, highlighting or otherwise providing access to lists 22 or forums that include, refer to or signal the availability of Plaintiffs’ 23 Copyrighted Works; 24 g. Including references to Plaintiffs’ Copyrighted Works in any promotional 25 materials; and 26 h. Creating, maintaining or providing access to the Infringing Website. 27 8. Defendant Temiz shall not enter into any agreement or transaction to sell, lease, 28 license, assign, convey, distribute, loan, encumber, pledge or otherwise transfer, 1 whether or not for consideration or compensation, any part of the system, 2 software, source code, data file, other technology, or domain names used in 3 connection with the Infringing Website. 4 9. Namecheap, Inc., as registrar of the domain name , 5 upon notice of this order, is directed to: 6 a. Immediately disable the , or any subset of 7 , specified by Plaintiffs, through a registry 8 hold or otherwise, to prevent Temiz from transferring, redirecting, or 9 changing the status of the said domain name; and 10 b. At the direction of Plaintiffs, transfer , to 11 Plaintiffs’ ownership and control, including by changing the registrar of 12 record to the registrar of Plaintiffs’ choosing; and 13 c. Suspend any services for or to Defendant 14 Temiz. 15 10. Cloudflare, Inc., as the website hosting and security service provider for 16 “cumswallowingmovies.org” and “cumswallowingmovies.io,” is directed to: 17 a. immediately, upon notice of this order, suspend any services to the 18 website at “cumswallowingmovies.org” or “cumswallowingmovies.io,” 19 and place an administrative lock on the website to prevent accessing and 20 downloading the content of the website or transferring the content to 21 another domain name or hosting service, pending further order of this 22 Court; and 23 b. Suspend any services to Defendant Temiz. 24 11. Tucows, Inc., as registrar of the domain name and 25 , is directed to: 26 a. Immediately, upon service copies of this order, complaint, and moving 27 papers by email at compliance@tucows.com, disable the said domain 28 names and place a registry hold on the domain names, to prevent Temiz 1 from transferring, redirecting, or changing the status of the said domain 2 name; 3 b. At the direction of Plaintiffs, transfer and 4 , to Plaintiffs’ ownership and control, 5 including by changing the registrar of record to the registrar of Plaintiffs’ 6 choosing; and 7 c. Suspend any services for and 8 or to Defendant Temiz. 9 12. Upon entry of this default judgment, the Clerk of the Court shall terminate this 10 case. 11 Dated this 27th day of September, 2023. 12 13 14 {Z, 15 {UO 16 Upited States Dictria Judge 17 18 19 20 21 22 23 24 25 26 27 28
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