173043.1 1

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF ALABAMA

NORTHERN DIVISION

ELEKTRA ENTERTAINMENT GROUP 

INC., a Delaware corporation; VIRGIN 

RECORDS AMERICA, INC., a California 

corporation; UMG RECORDINGS, INC., a 

Delaware corporation; SONY BMG 

MUSIC ENTERTAINMENT, a Delaware 

general partnership; ARISTA RECORDS 

LLC, a Delaware limited liability company; 

and ATLANTIC RECORDING 

CORPORATION, a Delaware corporation,

Plaintiffs,

vs.

DAN BENN,

Defendant.

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Civil Action No.: 2:06-cv-00633-MEF-VPM

PLAINTIFFS’ MOTION TO CANCEL DAMAGES HEARING

Plaintiffs respectfully move this Court for an Order dispensing with the default judgment 

damages hearing scheduled pursuant to the Court’s Order of October 16, 2006. (Doc. #9.) In 

support of this motion, Plaintiffs state as follows:

Plaintiffs understand that the purpose of the damages hearing is to allow the Court to 

determine the appropriate damages under § 504 of the Copyright Act. Plaintiffs respectfully 

submit that this hearing is unnecessary, because Plaintiffs are seeking only minimum statutory 

damages, the precise amount of which are determined by statute, and because the number of 

violations has already been determined by the entry of default. Specifically, under § 504 of the 

Copyright Act, which expressly grants copyright holders the right to elect between actual and 

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173043.1 2

statutory damages, Plaintiffs are entitled to statutory damages regardless of whether they offer 

any proof of actual damages. 17 U.S.C. § 504. Here, Plaintiffs have elected statutory damages 

for the nine sound recordings listed in Exhibit A to the Complaint, and Defendant has had full 

notice of the amount of statutory damages available under the Copyright Act. Accordingly, there 

is nothing for Plaintiffs to prove at the scheduled hearing and no evidence to be presented. See 

BMG Music v. Gonzalez, 430 F.3d 888 (7th Cir. 2005) (holding that there are no issues of fact to 

be decided where a copyright plaintiff is seeking minimum statutory damages and where liability 

has already been determined). As such, Plaintiffs respectfully request that the Court cancel the 

damages hearing.

I. BACKGROUND

On July 18, 2006, Plaintiffs filed suit against Defendant for engaging in massive 

copyright infringement on the Internet. Plaintiffs served Defendant with the Complaint by 

substitute service on August 7, 2006. Defendant failed to respond to the Complaint. 

Accordingly, Plaintiffs filed a Request to Enter Default by Clerk, which was granted on 

September 21, 2006. (Doc. #6.) Plaintiffs filed notice of this request. (Doc. #7.) Defendant 

never filed anything with the Court and never responded to Plaintiffs’ notice.

Plaintiffs then filed an Application for Entry of Default Judgment by the Court (the 

“Application”) and Proposed Default Judgment and Permanent Injunction. (Doc. #8.)

Defendant never filed anything with the Court and never contacted Plaintiffs. In the Application,

Plaintiffs requested an injunction, $6,750 in statutory damages for nine copyright violations, and 

costs in the amount of $420.00. (Id.) The Court granted the Application for Default Judgment 

on October 16, 2006, which established Defendant’s liability, see Adams v. Fid. & Cas. Co., 920 

F.2d 897, 898 (11th Cir. 1991), and ordered the subject damages hearing. (Doc. #9.)

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II. DISCUSSION

A. Under § 504 of The Copyright Act, Plaintiffs are Entitled to Statutory 

Damages Regardless of Whether Plaintiffs Offer Any Proof of Actual 

Damages, and, therefore, No Prove Up is Required. 

The Copyright Act expressly grants the copyright holder the right to elect between actual 

and statutory damages. Section 504(a) of the Copyright Act provides that “an infringer of 

copyright is liable for . . . (2) statutory damages, as provided by subsection (c).” Section 504(c), 

in turn, provides that “the copyright owner may elect, at any time before final judgment is 

rendered, to recover, instead of actual damages and profits, an award of statutory damages for all 

infringements involved in the action, with respect to any one work . . . in a sum of not less than 

$750 or more than $30,000 as the court considers just.” 17 U.S.C. § 504. 

The Copyright Act, thus, grants the copyright holder the ability to choose between actual 

and statutory damages and – just as clearly – prohibits a court from awarding an amount less 

than a minimum of $750 per infringement. Island Software & Computer Serv. v. Microsoft 

Corp., 413 F.3d 257, 262-63 (2d Cir. 2005); Atl. Recording Corp. v. Brown, 2006 U.S. Dist. 

LEXIS 69461 (N.D. Ga. Sept. 26, 2006). Therefore, under current copyright law, although the 

Court continues to have “wide discretion in determining the amount of statutory damages to be 

awarded,” the Court is “constrained [] by the specified maxima and minima” set forth in the 

Copyright Act. Columbia Pictures Industries, Inc. v. Krypton Broad. of Birmingham, Inc., 259 

F.3d 1186, 1194 (9th Cir. 2001), cert. denied, 534 U.S. 1127 (2002). 

Here, Plaintiffs have elected statutory damages. As noted above, it is well-settled that 

Plaintiffs are entitled to statutory damages once liability is established, regardless of whether 

they offer any proof of actual damages. See, e.g., Russell & Stoll Co. v. Oceanic Electrical 

Supply Co., 80 F.2d 864 (2d Cir. 1936) (“[Statutory damages] are in lieu of actual damages . . . 

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[and] a court may use them without proof of the quantum of the loss.”); accord Macklin v. 

Mueck, 2005 U.S. Dist. LEXIS 18026 (S.D. Fla. Jan. 28, 2005) (A plaintiff electing statutory 

damages waives any proof of actual damages); Wechsberg v. United States, 54 Fed. Cl. 158, 167 

(Ct. Cl. 2002) (“If the copyright owner seeks no more than minimum statutory damages, the 

record on damages need not reflect much, if anything, more than a finding of infringement.”). 

As a matter of efficiency and fairness, in this case, Plaintiffs have decided to accept the 

minimum statutory damages available for the copyright violations of the nine sound recordings 

listed on Exhibit A to the Complaint. Furthermore, Plaintiffs have agreed to forego the 

opportunity to seek statutory damages above the minimum permitted by the Copyright Act.

Because Plaintiffs have elected the minimum statutory damages in this case and because 

liability has already been determined, there are no fact issues for this Court to decide, and the 

actual damages suffered by Plaintiffs, regardless of their amount or how they might be measured, 

are irrelevant. See Gonzalez, 430 F.3d 888; see also Twin Peaks Prods. v. Publ’ns Int’l, Ltd., 

996 F.2d 1366, 1380 (2d Cir. 1993) (a plaintiff’s exercise of its right to elect statutory damages 

against the defendant eliminates from the case all issues concerning actual damages recoverable 

from the defendant); Myers v. First Tenn. Bank, N.A., 2000 U.S. Dist. LEXIS 4177, at *9 (M.D. 

Ala. Mar. 30, 2000) (“Statutory damages are recoverable without either proof or recovery of

actual damages.”); accord Los Angeles News Serv. v. Reuters Television Int’l, Ltd., 149 F.3d 987, 

996 (9th Cir. 1998) (opining that a plaintiff may recover statutory damages whether or not there 

is adequate evidence of the actual damages suffered by plaintiff or the profits reaped by 

defendant, in order to sanction and vindicate the statutory policy of discouraging infringement); 

4 M. Nimmer & D. Nimmer, NIMMER ON COPYRIGHT, § 14.4[A], at 14-44-45 (2002) 

(“[T]he copyright owner may elect to recover statutory damages, instead of actual damages and 

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Defendant’s profits. He may, moreover, make such an election regardless of the adequacy of the 

evidence offered as to his actual damages and the amount of Defendant’s profits, and even if he 

has intentionally declined to offer such evidence, although it was available”). 

In light of these settled principles, in more than 500 similar cases throughout the country, 

other federal courts have routinely entered default judgments at the statutory minimum amounts 

requested by plaintiff recording companies without the need for a hearing. See, e.g., OrtizGonzalez v. Fonovisa, 277 F.3d 59, 63-64 (1st Cir. 2002); Motown Record Co. v. Armendariz, 

2005 U.S. Dist. LEXIS 32045 (W.D. Tex. Sept. 22, 2005) (explaining that “[a]n award of

statutory damages does not require an evidentiary hearing” because defendant’s default by itself 

establishes a basis for the requested statutory damages). Plaintiffs seek the same here in the 

interests of efficiency and economy for both the Court and the parties.

III. CONCLUSION

Because Plaintiffs’ election of minimum statutory damages for copyright infringement

obviates any need to prove actual damages, Plaintiffs respectfully request that the Court award 

Plaintiffs the statutory minimum to which they are entitled without holding a damages hearing, 

plus the costs that Plaintiffs have previously documented.

Respectfully submitted,

DATED: October 23, 2006 s/ Kelly F. Pate

Dorman Walker (Bar # WAL086)

Kelly F. Pate (Bar # FIT014)

BALCH & BINGHAM LLP

105 Tallapoosa St., Suite 200

P.O. Box 78 (36101-0078)

Montgomery, Alabama 36104

Telephone: (334) 269-3130

Fax: (334) 313-6056

ATTORNEYS FOR PLAINTIFFS

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CERTIFICATE OF SERVICE

I, the undersigned hereby certify that a true and correct copy of the above and foregoing 

was served via United States mail to the following, this the 23

rd day of October, 2006.

Mr. Dan Benn

4000 Oak Street

Montgomery, AL 36105

/s Kelly F. Pate 

Of Counsel

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