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IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

AF HOLDINGS LLC,

Plaintiff,

v.

JASON HAWK,

Defendant.

CASE NO. 1:12-cv-04236

Judge: Hon. Gary Feinerman

Magistrate Judge: Hon. Morton Denlow

PLAINTIFF’S MOTION FOR DEFAULT 

JUDGMENT AGAINST DEFENDANT 

JASON HAWK

PLAINTIFF’S MOTION FOR DEFAULT JUDGMENT 

AGAINST DEFENDANT JASON HAWK

Pursuant to the Federal Rule of Civil Procedure 55, Plaintiff hereby requests that the 

Court enter a judgment by default against Defendant Jason Hawk. Defendant Hawk was served 

with the summons and amended complaint on September 18, 2012. Defendant Hawk failed to 

respond to Plaintiff’s allegations within the time specified by Federal Rule of Civil Procedure 

12(a). Therefore, because Plaintiff has shown sufficient facts to establish Defendant Hawk’s 

liability and a clerk’s default has already been filed, the Court should enter default judgment 

against Defendant Hawk. Based on the actions of Defendant Hawk that led to the infringement 

by thousands of other individuals of Plaintiff’s copyrighted work, the Court should enter 

judgment for at least $150,000 in statutory damages plus $3,770.00 in attorney’s fees and costs 

to Plaintiff.

I. RELEVANT HISTORY

Plaintiff AF Holdings, LLC is the owner of the copyrighted motion picture “Sexual 

Obsession.” (ECF No. 11 ¶ 19.) Plaintiff initially filed this action on May 31, 2012 against an 

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unknown infringer for copyright infringement and related claim of contributory infringement for 

illegally downloading and distributing the copyrighted work, “Sexual Obsession,” through the 

BitTorrent protocol. (ECF No. 1.) When the suit was filed, Plaintiff did not know the name of the 

alleged infringer but had identified the Internet Protocol (“IP”) address associated with the 

infringement. (Id. ¶ 4.) In order to ascertain the identities of the unknown infringers, Plaintiff 

sought leave to issue a subpoena to the Internet Service Provider (“ISP”) who provided Internet 

service to the identified IP address. (ECF No. 5.) The Court granted Plaintiff’s request on June 8, 

2012. (ECF No. 7.)

Pursuant to the Court’s order, Plaintiff issued a subpoena to the ISP who provided 

Internet service to the IP address over which the infringement occurred. After the ISP provided 

notice to its subscriber, the ISP identified Jason Hawk as the individual associated the infringing 

IP address. Plaintiff amended its complaint on August 20, 2012 to name Jason Hawk as the 

Defendant in this action. (ECF No. 9.)

A summons was issued to Defendant Hawk on September 6, 2012 at the address provided

by his ISP, informing him of this lawsuit and explaining that if he failed to respond with an 

answer or motion within 21 days, judgment by default will be entered against him. (attached 

hereto as Exhibit B); (see also Declaration of Paul Duffy [hereinafter “Duffy Decl.”] ¶ 3, 

attached hereto as Exhibit A). Plaintiff further served Defendant Hawk with the summons and 

amended complaint through personal service on September 18, 2012. (attached hereto as Exhibit 

B); (see also Duffy Decl. ¶ 3.)

As of October 29, 2012 Defendant Hawk had not responded, either through an answer or 

a motion, to Plaintiff’s amended complaint. Plaintiff filed a request for the Clerk of Court to 

enter default against Defendant Hawk on the ground that he failed to appear or otherwise 

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respond to Plaintiff’s amended complaint within the time prescribed by FRCP Rule 12(a). 

Because Defendant Hawk still has not responded, either through an answer or a motion, to 

Plaintiff’s amended complaint, Plaintiff submits this motion for default judgment against him.

II. ARGUMENT 

This section consists of four parts. Part A sets forth the standard for default judgment. 

Part B argues that Plaintiff has established Defendant Hawk’s liability. Part C argues that 

Plaintiff is entitled to collect statutory damages as a result of damage caused by Defendant 

Hawk’s actions. Part D argues that Plaintiff is entitled to collect attorneys’ fees as a result of 

Defendant Hawk’s actions.

A. Standards for Default Judgment.

Federal Rule of Civil Procedure 55(a) provides that the clerk of the court must enter a 

party’s default “[w]hen a party against whom a judgment for affirmative relief is sought has 

failed to plead or otherwise defend, and that failure is shown by affidavit or otherwise.” Fed. R. 

Civ. P. 55(a). In defaulting, Defendant “admits the plaintiff's well-pleaded allegations of fact.” 

Buchanan v. Bowman, 820 F.2d 359, 361 (11th Cir.1987). Once a party has been defaulted, a 

court may enter a default judgment. Fed. R. Civ. P. 55(b). If the facts in the complaint are 

sufficient to establish liability, then the court must conduct an inquiry to ascertain the amount of 

damages. PETMED EXP., INC. v. MedPets. Com, Inc., 336 F.Supp. 2d. 1213, 1217 (S.D. Fla. 

2004); see also Arista Records, Inc. v. Beker Enter., Inc., 298 F.Supp.2d 1310, 1312 (S.D. Fla. 

2003). Damages may be awarded if the record adequately reflects the basis for the award via a 

hearing or a demonstration of detailed affidavits establishing the necessary facts. Adolph Coors 

Co. v. Movement Against Racism and The Klan, 777 F.2d 1538, 1544 (11th Cir. 1985). This 

process is limited by Rule 54, which states that “[a] default judgment must not differ in kind 

from, or exceed in amount, what is demanded in the pleadings.” Fed.R.Civ.P. 54(c).

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B. Plaintiff has Established Defendant Hawk’s Liability

Plaintiff has established that Defendant Hawk is liable for its claims of copyright 

infringement and contributory infringement. (ECF No. 11.) Plaintiff addresses each claim in 

greater detail below.

1. Plaintiff has established Defendant Hawk’s liability for copyright 

infringement.

Plaintiff’s pleadings establish Defendant Hawk’s liability for copyright infringement. “To 

establish infringement, two elements must be proven: (1) ownership of a valid copyright, and (2) 

copying of constituent elements of the work that are original.” Feist Publications, Inc. v. Rural 

Telephone Service Co., 499 U.S. 340, 361 (1991). Plaintiff has met both of these elements. In 

regards to the first element, in its amended complaint Plaintiff alleged that “Plaintiff is the 

exclusive rights holder with respect to BitTorrent-based reproduction and distribution of the 

Video.” (ECF No. 11 ¶ 18.) Plaintiff further alleged that “[t]he Video is currently registered in 

the United States Copyright Office (Copyright No. PA0001725120),” and that “Plaintiff received 

the rights to this Video pursuant to an assignment agreement.” (Id. ¶ 19.) A copy of the 

certificate of registration and a copy of the assignment agreement were attached to amended 

complaint as Exhibits A and B respectively. (See ECF Nos. 11-1, 11-2.)

Further, in judicial proceedings, a “certificate of registration made before or within five 

years after first publication of the work shall constitute prima facie evidence of the validity of the 

copyright and of the facts stated in the certificate.” 17 U.S.C. § 410(c) (1977). Plaintiff’s 

certificate of registration meets this requirement and establishes prima facie evidence of a valid 

copyright. (ECF No. 11-1) (showing that the date of publication is March 14, 2011 and the 

registration date is March 25, 2011). Once Plaintiff produced the certificate of copyright, the 

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burden shifted to Defendant to demonstrate why the claim of copyright is invalid. Bibbero Sys., 

Inc. v. Colwell Sys., Inc., 893 F.2d 1104, 1106 (9th Cir.1990). Because Defendant failed to 

answer Plaintiff’s amended complaint or otherwise response, he failed to rebut this presumption.

In regards to the second element, Plaintiff alleged that “Defendant, using IP address 

76.11.135.11, without Plaintiff’s authorization or license, intentionally downloaded a torrent file 

particular to Plaintiff’s Video, purposefully loaded that torrent file into his BitTorrent client—in 

this case, μTorrent 3.1.2—entered a BitTorrent swarm particular to Plaintiff’s Video, and 

reproduced and distributed the Video to numerous third parties.” (ECF No. 11 ¶ 22.) Plaintiff 

further alleged the specific date and time at which Plaintiff observed the infringement. (Id. ¶ 23) 

(“Plaintiff’s investigators detected Defendant’s illegal download on March 2, 2012 at 7:45:39 

PM (UTC).”). Finally Plaintiff alleged that “Defendant’s conduct infringes upon Plaintiff’s 

exclusive rights of reproduction and distribution that are protected under the Copyright Act.” (Id.

¶ 26.) The Court must accept these well-pleaded allegations as fact. Buchanan, 820 F.2d at 361.

Based on Plaintiff’s allegations both elements for copyright infringement have been established. 

Plaintiff, therefore, has established Defendant Hawk’s liability for copyright infringement.

2. Plaintiff has established Defendant Hawk’s liability for contributory 

infringement.

Plaintiff’s pleadings establish Defendant Hawk’s liability for contributory infringement. 

“This court has stated the well-settled test for a contributory infringer as ‘one who, with 

knowledge of the infringing activity, induces, causes or materially contributes to the infringing 

conduct of another.’” Cable/Home Communication Corp. v. Network Productions, 902 F.2d 829, 

845 (11th Cir. 2004) (citing Caella v. Morris, 820 F.2d 362, 365 (11th Cir. 1987).) Plaintiff 

alleged that “Defendant knew of the infringement, was conscious of his own infringement, and 

Defendant was fully conscious that his actions resulted in multiple other persons derivatively 

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downloaded the file containing Plaintiff’s Video.” (ECF No. 11 ¶ 37.) Plaintiff further alleged 

that “The infringement by the other BitTorrent users could not have occurred without 

Defendant’s participation in uploading Plaintiff’s copyrighted works. As such, Defendant’s 

participation in the infringing activities of others is substantial and contributed, for profit, to the 

infringing activity of thousands of other peers over the Internet across the world.” (Id. ¶ 38.) 

Therefore, Plaintiff has established that Defendant had knowledge of the infringing activities and 

materially contributed to the infringement conduct of others. Buchanan, 820 F.2d at 361.

Plaintiff has established Defendant Hawk’s liability for contributory infringement.

C. Plaintiff is Entitled to Recover Statutory Damages as a Result of Defendant 

Hawk’s Actions

Because Plaintiff’s well-pled complaint establishes Defendant Hawk’s liability, Plaintiff 

must now set forth the damages caused by his actions. Adolph Coors Co., 777 F.2d at 1544. The 

Copyright Act permits copyright owners to obtain statutory damages for the infringement of their

copyrighted work. 17 U.S.C. § 504. This is applicable to both claims of copyright infringement 

and contributory infringement. Cable/Home Communication Corp. v. Network Productions, 902 

F.2d 829, 840 (11th Cir. 1990). The copyright holder may seek “a sum of not more than 

$150,000” if the “infringement was committed willfully.” 17 U.S.C. § 504 (c)(2). Plaintiff 

sought statutory damages in its amended complaint. (ECF No. 11 at 11) (“Judgment in favor of 

the Plaintiff against Defendant for actual damages or statutory damages pursuant to 17 U.S.C. § 

504, at the election of Plaintiff, in an amount to be ascertained at trial.”)

A court can reduce the statutory award if the “infringer was not aware and had no reason 

to believe that his or her acts constituted an infringement of copyright.” Id. Further, a court 

should remit the statutory damages where the:

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infringer believed and had reasonable grounds for believing that 

his or her use of the copyrighted work was a fair use under section 

107, if the infringer was: (i) an employee or agent of a nonprofit 

educational institution, library, or archives acting within the scope 

of his or her employment who, or such institution, library, or 

archives itself, which infringed by reproducing the work in copies 

or phonorecords; or (ii) a public broadcasting entity which or a 

person who, as a regular part of the nonprofit activities of a public 

broadcasting entity (as defined in section 118(f)) infringed by 

performing a published nondramatic literary work or by 

reproducing a transmission program embodying a performance of 

such a work.

Id. In the instant case, the infringement has been committed willfully as Defendant Hawk was 

aware or should have been aware of the infringement. (ECF No. 11 ¶ 28) (“Defendant’s conduct 

was willful within the meaning of the Copyright Act: intentional, and with indifference to the 

Plaintiff’s rights.”); (id. ¶ 20) (“The torrent file used to access the copyrighted material was 

named in a manner that would have provided an ordinary individual with notice that the Video 

was protected by the copyright laws of the United States.”); (id. ¶ 37) (“Defendant knew of the 

infringement, was conscious of his own infringement, and Defendant was fully conscious that his 

actions resulted in multiple other persons derivatively downloaded the file containing Plaintiff’s 

Video.”). Further, due to the nature of Plaintiff’s copyrighted work, Defendant Hawk was not 

acting within the scope of his employment at a nonprofit organization or part of the activities of a 

nonprofit organization. Therefore, the Court should neither reduce nor remit the statutory 

damages of $150,000.

D. Plaintiff is Entitled to Recover Attorneys’ Fees and Costs as a Result of 

Defendant Hawk’s Actions

The Copyright Act permits the court to recover “full costs” and “a reasonable attorney’s 

fee to the prevailing party as part of the costs.” 17 U.S.C. § 505. Awarding attorneys’ fees 

addresses the goals of the Copyright Act, one of them being to discourage infringement, because 

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it enables rights holders to vindicate or defend their rights. See Fogerty v. Fantasy, Inc., 510 U.S. 

517, 526-27 (1994). Plaintiff sought attorneys’ fees and costs in its amended complaint. (ECF 

No. 11 at 11) (“Judgment in favor of Plaintiff against the Defendant awarding the Plaintiff 

attorneys’ fees, litigation expenses (including fees and costs of expert witnesses), and other costs 

of this action.”). When awarding attorneys’ fees under the Copyright Act, the Court must 

initially decide whether awarding attorneys’ fees are appropriate, considering such things as the 

motivation, objective reasonableness, and the need in particular circumstances to advance 

considerations of compensation and deterrence. Id. at 535.

Here, Defendant Hawk’s actions demonstrate a blatant disregard for Plaintiff’s rights by, 

inter alia, failing to respond to numerous notices of his actions. Additionally, Plaintiff has 

expended considerable amounts of time and money to create its copyrighted motion picture, and 

now, to protect it. Plaintiff has been severely and negatively impacted by the activities of 

Defendant Hawk and individuals he helped to reproduce and distribute Plaintiff’s work free of 

charge. Therefore, awarding Plaintiff attorneys’ fees and costs is appropriate under the Copyright 

Act.

As a result of Plaintiff’s prosecution of this case against Defendant Hawk, Plaintiff has 

incurred attorney’s fees and costs for which it requests their inclusion in the default judgment. 

(See Duffy Decl. ¶¶ 5-6.) Specifically, Plaintiff requests $3,375.00 in attorney’s fees and $405 in

costs; for a total of $3,780.00. (Id.) Therefore, the Court should award Plaintiff cost and fees in 

the amount of $3,780.00.

III. CONCLUSION 

For all of the foregoing reasons, Plaintiff respectfully requests that the Court enter 

judgment against Defendant Hawk for damages in the amount of $153,780.00. As Plaintiff has 

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demonstrated, Defendant Hawk infringed on Plaintiff’s copyrighted work and contributed to the 

infringement of Plaintiff’s copyrighted motion picture by numerous individuals.

Respectfully submitted,

AF Holdings LLC 

DATED: October 29, 2012

By: /s/ Paul Duffy

Paul Duffy (Bar No. 6210496)

Prenda Law Inc.

161 N. Clark St., Suite 3200

Chicago, IL 60601

Phone: 312-880-9160

Fax: 312-893-5677

E-mail: paduffy@wefightpiracy.com

Attorney for Plaintiff

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CERTIFICATE OF SERVICE

The undersigned hereby certifies that on October 29, 2012, all counsel of record who are 

deemed to have consented to electronic service are being served a true and correct copy of the 

foregoing document using the Court’s CM/ECF system. In addition, a copy of the foregoing was 

mailed to Defendant Jason Hawk by First Class U.S. mail postage prepaid consistent with the 

Federal Rules of Civil Procedure at the following last known residential address:

Jason Hawk

18700 N. Bay Road

Sunny Isles Beach, FL 33160

 /s/ Paul Duffy

 PAUL DUFFY

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