Wavve Americas Incorporated v. Unknown Party, et al.

• Court: District Court, D. Arizona
• Decided: April 6, 2026
• Docket: 2:24-cv-02667
• Status: Unknown

Opinion

1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA

9 Wavve Americas Incorporated, No. CV-24-02667-PHX-KML

10 Plaintiff, ORDER

11 v.

12 Unknown Party, et al.,

13 Defendants. 14 15 Plaintiff Wavve Americas Inc. seeks default judgment against defendants, the 16 registrants of various domain names. (Doc. 59.) Wavve alleges defendants are using the 17 domain names unlawfully to distribute “numerous Korea-originating television 18 programming and feature films.” (Doc. 59 at 2.) The court must consider seven factors 19 when deciding whether to enter default judgment. Eitel v. McCool, 782 F.2d 1470, 1471- 20 72 (9th Cir. 1986). The seven factors are: 21 (1) the possibility of prejudice to the plaintiff, (2) the merits of plaintiff’s substantive claim, (3) the sufficiency of the complaint, (4) the sum of money 22 at stake in the action; (5) the possibility of a dispute concerning material facts; (6) whether the default was due to excusable neglect, and (7) the strong 23 policy underlying the Federal Rules of Civil Procedure favoring decisions on the merits. 24 25 Id. These factors establish default judgment is appropriate. 26 1. Possibility of Prejudice 27 The first factor regarding the prejudice to Wavve weighs in favor of default 28 judgment because if “default judgment is not granted, [Wavve] will likely be without other 1 recourse for recovery.” PepsiCo, Inc. v. Cal. Sec. Cans, 238 F. Supp. 2d 1172, 1177 (C.D. 2 Cal. 2002). 3 2. Merits of the Claims and Sufficiency of the Complaint 4 The second and third factors require assessing the merits of Wavve’s claims and the 5 sufficiency of its complaint. These factors “are often analyzed together and require courts 6 to consider whether a plaintiff has state[d] a claim on which [it] may recover.” Vietnam 7 Reform Party v. Viet Tan - Vietnam Reform Party, 416 F. Supp. 3d 948, 962 (N.D. Cal. 8 2019) (simplified). 9 The operative complaint alleges Wavve operates a “media service that distributes 10 (i.e., streams) media content directly to viewers via the Internet.” (Doc. 42 at 10.) Wavve 11 “licenses original programming that first airs in Korea for distribution in the United States 12 and elsewhere.” (Doc. 42 at 10.) These licenses are exclusive. (Doc. 42 at 11.) Wavve 13 provides some programming “for free with ads, from which [it] generates revenue.” (Doc. 14 42 at 11.) Wavve also offers a subscription service. (Doc. 42 at 10.) 15 Wavve names as defendants individuals who have been identified as the registrants 16 of numerous domain names. (Doc. 42 at 2-3.) Defendants operate websites at those domain 17 names where visitors “can select from a wide variety of media content,” including content 18 that was “exclusively licensed” to Wavve. (Doc. 42 at 12.) One defendant is also linked to 19 the creation of the “DRAMACOOL App,” that can be used “to access a vast quantity of 20 infringing content.” (Doc. 42 at 16.) 21 Wavve asserts two claims. First, copyright infringement against all defendants 22 based on defendants “unlawfully creat[ing] copies” of certain copyrighted material and 23 distributing that material in the United States. (Doc. 42 at 25.) Second, contributory 24 copyright infringement against one defendant, Tommy USA. That defendant is the 25 registrant of . The website at that domain name contains a hyperlink that 26 “directly leads visitor to infringing copies” of the copyrighted material. (Doc. 42 at 26.) 27 “A copyright plaintiff must prove (1) ownership of the copyright; and (2) 28 infringement—that the defendant copied protected elements of the plaintiff’s work.” 1 Ambrosetti v. Oregon Cath. Press, 151 F.4th 1211, 1218 (9th Cir. 2025) (simplified). As 2 the exclusive licensee for distribution in the United States, Wavve has sufficient ownership 3 interest to sue for infringement occurring in the United States. Righthaven LLC v. Hoehn, 4 716 F.3d 1166, 1170 (9th Cir. 2013) (“if a copyright owner grants an exclusive license of 5 particular rights, only the exclusive licensee and not the original owner can sue for 6 infringement of those rights”). And defendants have infringed upon Wavve’s exclusive 7 rights “by doing exactly what [Wavve] does,” i.e., distributing copies of copyrighted 8 material. (Doc. 59 at 11.) Wavve has stated a strong claim of copyright infringement. 9 A claim for contributory infringement requires allegations a defendant “(1) has 10 knowledge of a third party’s infringing activity, and (2) induces, causes, or materially 11 contributes to the infringing conduct.” Perfect 10, Inc. v. Visa Int’l Serv. Ass’n, 494 F.3d 12 788, 795 (9th Cir. 2007) (simplified). Tommy USA operates which 13 provides links to infringing content available at other sites. Tommy USA updates 14 to allow continued access to infringing content when certain domain names 15 are shut down. In other words, Tommy USA materially contributes to the infringing 16 conduct of unauthorized distribution. Wavve has stated a claim for contributory 17 infringement against Tommy USA. Wavve’s allegations establish the second and third 18 default judgment factors support default judgment. 19 3. Amount in Controversy 20 The fourth default judgment factor “requires that the court assess whether the 21 recovery sought is proportional to the harm caused by defendant’s conduct.” Landstar 22 Ranger, Inc. v. Parth Enterprises, Inc., 725 F. Supp. 2d 916, 921 (C.D. Cal. 2010). Wavve 23 does not seek monetary damages. (Doc. 59 at 10.) Wavve only seeks injunctive relief in 24 the form of prohibiting defendants from continuing their infringing activities and 25 transferring ownership of domain names to Wavve. This relief is targeted to remedy the 26 harms caused by defendants’ conduct, so this factor supports entry of default judgment. 27 4. Dispute Over Material Facts 28 The fifth factor is whether there are any disputes over material facts. Defendants’ 1 failure to participate means there is no indication of such disputes. This factor weighs in 2 favor of default judgment. 3 5. Excusable Neglect 4 There is no evidence defendants’ failure to participate is the result of excusable 5 neglect. See Shanghai Automation Instrument Co. v. Kuei, 194 F. Supp. 2d 995, 1005 (N.D. 6 Cal. 2001) (defendants’ failure to respond to complaint could not “be attributable to 7 excusable neglect” because “[a]ll were properly served with the Complaint, the notice of 8 entry of default, as well as the papers in support of the instant motion.”). This factor 9 supports default judgment. 10 6. Policy Favoring Decisions on the Merits 11 The seventh factor recognizes a preference for resolving matters on their merits. 12 This factor, as always, weighs against entry of default judgment. “However, the mere 13 existence of Fed.R.Civ.P. 55(b) indicates that this preference, standing alone, is not 14 dispositive.” PepsiCo, 238 F. Supp. 2d at 1177 (simplifed). 15 7. Default Judgment is Merited 16 Viewed together, the factors support entry of default judgment. The only remaining 17 issue is the scope of relief. 18 8. Injunctive Relief 19 Although Wavve has established defendants are engaged in ongoing infringing 20 activities, that does not automatically entitle it to a permanent injunction. eBay Inc. v. 21 MercExchange, L.L.C., 547 U.S. 388, 393 (2006). Wavve is entitled to an injunction only 22 upon showing “(1) that it has suffered an irreparable injury; (2) that remedies available at 23 law, such as monetary damages, are inadequate to compensate for that injury; (3) that, 24 considering the balance of hardships between the plaintiff and defendant, a remedy in 25 equity is warranted; and (4) that the public interest would not be disserved by a permanent 26 injunction.” Id. at 391. 27 Defendants’ ongoing distribution of copyrighted materials deprives Wavve of its 28 “ability to control the use and transmission of their Copyrighted Works, thereby causing 1 irreparable injury to [Wavve].” Warner Bros. Ent. Inc. v. WTV Sys., Inc., 824 F. Supp. 2d 2 1003, 1012–13 (C.D. Cal. 2011). The infringement also deprives Wavve of revenue and 3 risks Wavve’s “future success.” (Doc. 59 at 17.) Such “economic harm is not generally 4 considered irreparable.” E. Bay Sanctuary Covenant v. Biden, 993 F.3d 640, 677 (9th Cir. 5 2021). But “[t]he threat of being driven out of business is sufficient to establish irreparable 6 harm.” hiQ Labs, Inc. v. LinkedIn Corp., 31 F.4th 1180, 1188 (9th Cir. 2022). In addition, 7 defendants have ignored this litigation, meaning it is likely “an award of monetary damages 8 will be meaningless, and [Wavve] will have no substantive relief” because “it will be 9 impossible to collect an award for past and/or future infringements perpetrated by a 10 defendant[s].” Metro-Goldwyn-Mayer Studios, Inc. v. Grokster, Ltd., 518 F. Supp. 2d 11 1197, 1217 (C.D. Cal. 2007). Requiring defendants stop their infringing activities will not 12 cause any legitimate hardship. And the public interest is served in enforcing copyright law. 13 A permanent injunction prohibiting defendants from continuing their activities is 14 appropriate. 15 Wavve also requests the injunction require transfer ownership of the domain names 16 to Wavve. It is clear a domain name can be transferred when a plaintiff prevails on certain 17 trademark claims, see 15 U.S.C. § 1125(d)(1)(C), but no trademark claims are asserted 18 here. The current statute regarding appropriate relief for copyright infringement may not 19 allow a court to order the transfer of domain names. But see 17 U.S.C. § 503(b) (allowing 20 for “destruction or other reasonable disposition” of “articles” used to produce infringing 21 copies). But defendants have not appeared here to challenge the remedy, and “a number of 22 courts have found that a transfer of domain names is an appropriate remedy to prevent 23 further infringement of a copyright holder’s rights.” McGraw-Hill Glob. Educ. Holdings, 24 LLC v. Khan, 323 F. Supp. 3d 488, 500 (S.D.N.Y. 2018). Ordering transfer of domain 25 names can be appropriate if the infringement is ongoing and there are indications the 26 defendant will not comply with an injunction. See id. at 501; Philip Morris USA, Inc. v. 27 Otamedia Ltd., 331 F. Supp. 2d 228, 246 (S.D.N.Y. 2004). Here, defendants concealed 28 their identities, ignored this litigation, and have an “established practice of evading 1 copyright enforcement by moving their operation to new domains, even after having a 2 judgment rendered against them.” (Doc. 42 at 13.) Wavve is entitled to an order transferring 3 the domain names. 4 IT IS ORDERED the Motion for Default Judgment (Doc. 59) is GRANTED. 5 IT IS FURTHER ORDERED each of the defendants, and all of their officers, 6 agents, servants and employees, and all those persons or entities acting in active concert or 7 participation therewith, and all persons and entities who receive actual notice of this order, 8 are immediately and permanently enjoined from engaging in any of the following activities 9 by means of any of , , , , 10 , , , , 11 , , , , 12 , , , and (“Subject 13 Domains”), or otherwise: 14 i. storing, reproducing, displaying, or distributing any of the Copyrighted 15 Works that are exclusively licensed to wA for distribution in the United 16 States, a sample of which is attached as Exhibit F to Plaintiff’s First Amended 17 Complaint (Doc. 42) filed on March 27, 2025; 18 ii. transmitting, retransmitting, assisting in the transmission of, requesting 19 transmission of, streaming, hosting or providing unauthorized access to, or 20 otherwise publicly performing, directly or indirectly, by means of any device 21 or process, any of the Copyrighted Works; 22 iii. selling, advertising, marketing, or promoting any of the Copyrighted Works; 23 iv. creating, operating, maintaining, or managing any website in support of the 24 activities described above; 25 v. registering, owning, receiving, or transferring any domain name in support 26 of the activities described above; and 27 vi. creating or providing assistance to others who wish to engage in the activities 28 described above. 1 IT IS FURTHER ORDERED defendants, and all of their officers, agents, servants 2 and employees, and all those persons or entities acting in active concert or participation 3 therewith, and all persons and entities who receive actual notice of this order, are further 4 immediately and permanently enjoined from engaging in any activities having the object 5 or effect of fostering infringement of the Copyrighted Works by means of any of the 6 Subject Domains, or otherwise, including without limitation engaging in any of the 7 following activities: 8 i. advertising or promoting unauthorized access to or the availability of the 9 Copyrighted Works; 10 ii. encouraging or soliciting others to transmit or reproduce the Copyrighted 11 Works; 12 iii. encouraging or soliciting others to upload, post or index any files that 13 constitute, correspond, point or lead to any of the Copyrighted Works; 14 iv. encouraging or soliciting others to offer transmission of the Copyrighted 15 Works; and 16 v. providing technical assistance, support services or servers to others engaged 17 in infringement of, or seeking to infringe, the Copyrighted Works. 18 IT IS FURTHER ORDERED service of this default judgment and permanent 19 injunction upon defendants via their respective email addresses as identified in plaintiff’s 20 motion is deemed sufficient notice to defendants under Fed. R. Civ. P. 65. It shall not be 21 necessary for defendants to sign any form of acknowledgement of service. 22 IT IS FURTHER ORDERED plaintiff is entitled to ownership of each of the 23 Subject Domains, and that defendants, and all those persons or entities acting in active 24 concert or participation therewith, and all persons and entities who receive actual notice of 25 this order, shall transfer their respective Subject Domains to an account under plaintiff’s 26 control, which efforts shall be done at plaintiff’s reasonable expense. 27 IT IS FURTHER ORDERED any violation of this permanent injunction shall 28 expose defendants, and all other persons bound by this permanent injunction, to all 1 || applicable penalties, including contempt of Court. 2 IT IS FURTHER ORDERED the Clerk of Court shall enter judgment in favor of || plaintiff and close this case. 4 Dated this 6th day of April, 2026. 5

Honorable Krissa M. Lanham 8 United States District Judge 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

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