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IN THE UNITED STATES DISTRICT COURT 

FOR THE SOUTHERN DISTRICT OF OHIO 

EASTERN DIVISION 

RIDING FILMS, INC., 

 

 Plaintiff, 

vs. Civil Action 2:13-cv-46 

 Judge Marbley 

 Magistrate Judge King 

JOHN DOES 129-193, 

 Defendants. 

REPORT AND RECOMMENDATION 

 I. 

Plaintiff Riding Films, Inc., a Canadian limited liability 

company, claims the copyright to the motion picture Dawn Rider. 

Plaintiff filed this action on January 16, 2013, alleging that sixtyfour defendants, identified only by internet protocol (“IP”) 

addresses, each violated plaintiff’s copyright by downloading 

plaintiff’s motion picture and sharing it with others using a 

BitTorrent protocol or torrent, which is a type of peer-to-peer file 

sharing software. Through early discovery, see Order, ECF 4, 

plaintiff traced one of the IP addresses to one James Mclean, who was 

named as one of seven defendants in the Amended Complaint, ECF 15, and 

served with process, Summons Returned Executed, ECF 36. After 

defendant failed to plead or otherwise defend in this cause as 

required by law, the Clerk entered his default on April 16, 2014. 

Entry of Default, ECF 55. This matter is now before the Court, 

pursuant to an order of referral, Order, ECF 76, on plaintiff's motion 

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for default judgment against defendant James Mclean. Motion for 

Default Judgment, ECF 59. 

Plaintiff seeks $150,000 in statutory damages, $4,042.50 in 

attorneys’ fees, and $360.70 in costs; plaintiff also asks that the 

Court permanently enjoin defendant Mclean from infringing, directly or 

indirectly, plaintiff’s copyrighted works. Id. 

II. 

Rule 55(b) of the Federal Rules of Civil Procedure authorizes a 

court to enter default judgment against a party whose default has been 

entered by the clerk. Once default has been entered, a defaulting 

defendant is considered to have admitted all the well-pleaded 

allegations relating to liability. See Antoine v. Atlas Turner, Inc.,

66 F.3d 105, 110 (6th Cir. 1995). In order to succeed on its claim of 

copyright infringement under 17 U.S.C. § 101 et seq., plaintiff must 

prove that it owns a valid copyright in the motion picture and that 

defendant violated one or more of plaintiff’s exclusive rights by 

copying or distributing plaintiff’s copyrighted motion picture without 

authorization. See Lexmark Int’l, Inc. v. Static Control Components, 

Inc., 387 F.3d 522, 534 (6th Cir. 2004); Malibu Media LLC v. Doe, No. 

13-12178, 2013 WL 3945978, at *3 (E.D. Mich. July 31, 2013). Here, 

the Amended Complaint alleges all the elements of plaintiff’s claim 

and defendant’s default conclusively establishes those elements. See 

Thomas v. Miller, 489 F.3d 293, 299 (6th Cir. 2007) (entry of default 

judgment “conclusively establishes every factual predicate of a claim 

for relief”). 

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The mere determination of defendant’s liability does not, 

however, automatically entitle plaintiff to default judgment. The 

decision to grant default judgment falls within a court's discretion. 

10A Charles Alan Wright & Arthur R. Miller, Fed. Prac. & Proc. Civ. § 

2685 (3d ed.). In determining whether to enter judgment by default, 

courts often consider such factors as 

the amount of money potentially involved; whether material 

issues of fact or issues of substantial public importance 

are at issue; whether the default is largely technical; 

whether plaintiff has been substantially prejudiced by the 

delay involved; and whether the grounds for default are 

clearly established or are in doubt. Furthermore, the 

court may consider how harsh an effect a default judgment 

might have; or whether the default was caused by a goodfaith mistake or by excusable or inexcusable neglect on the 

part of the defendant. 

Id. (footnotes omitted). In the case presently before this Court, 

consideration of these factors militates in favor of granting default 

judgment. The only matter remaining, then, is the issue of damages. 

 As noted supra, plaintiff seeks $150,000 in statutory damages. 

The Copyright Act permits an award of statutory damages in lieu of 

actual damages attributable to the infringement. 17 U.S.C. § 504(a)-

(c). Statutory damages for each individual act of infringement 

ordinarily ranges from $750 to $30,000. 17 U.S.C. § 504(c)(1). Where 

the copyright owner establishes willful infringement, however, the 

Court may increase the award of statutory damages, up to a maximum of 

$150,000 per infringement. 17 U.S.C. § 504(c)(2). “The Court has 

substantial discretion to set statutory damages within the permitted 

range, but it is not without guidance.” Broadcast Music, Inc. v. 

H.S.I., Inc., No. C2-06-482, 2007 WL 4207901 at *4 (S.D. Ohio Nov. 26, 

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2007) (citing Douglas v. Cunningham, 294 U.S. 207, 210 (1935)). When 

determining the proper amount of statutory damages, “̔courts have 

looked to: (1) whether [d]efendants' infringement was willful, 

knowing, or innocent; (2) [d]efendants' profit from infringement; (3) 

[p]laintiffs' loss from infringement; and (4) deterring future 

violations by [d]efendants and similarly situated entities.’” 

Broadcast Music, Inc. v. 4737 Dixie Highway, LLC, No. 1:12-cv-506, 

2012 WL 4794052, at *4 (S.D. Ohio Oct. 9, 2012) (quoting H.S.I., Inc., 

2007 WL 4207901 at *6). 

 Plaintiff urges the Court to award the statutory maximum amount 

of $150,000 because defendant’s conduct was willful, because a maximum 

award will deter others, and because plaintiff and the motion picture 

industry have suffered real and significant harm. Plaintiff’s Motion, 

PAGEID 626-35. In order to recover the statutory maximum, a plaintiff 

must first prove that the defendant willfully infringed its copyright. 

17 U.S.C. § 504(c)(2). In this case, plaintiff has alleged facts 

that, when taken as true, could support a finding of willful 

infringement. However, even proof of willfulness does not 

automatically entitle a copyright holder to the statutory maximum; a 

court retains broad discretion to determine an appropriate damages 

figure in each case. AF Holdings LLC v. Bossard, 976 F. Supp. 2d 927, 

931 (W.D. Mich. 2013) (citing 17 U.S.C. § 504(c)(2)). 

 The facts of this case do not justify plaintiff’s requested 

award. Although the entry of his default has established a copyright 

infringement by defendant, it is not necessarily the case that 

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defendant was the original user who made plaintiff’s work available to 

the public. See Malibu Media, LLC v. Flanagan, 2:13-CV-5890, 2014 WL 

2957701, at *4 (E.D. Pa. July 1, 2014). Moreover, there is no 

evidence that defendant profited from the infringement. The nature of 

BitTorrent is such that defendant would not likely have reaped any 

profit from his participation in the infringement of plaintiff’s 

copyright except for the amount that defendant saved by illegally 

downloading the motion picture. See Bossard, 976 F. Supp. 2d at 931. 

Moreover, a review of damage awards in other cases involving copyright 

infringement by use of the BitTorrent protocol reveals that a total 

award closer to $6,000 would adequately deter future infringement. 

See id. at 930-31 (“In the vast majority of [cases involving 

intentional copyright infringement by use of BitTorrent or other filesharing protocols], courts have found damages of no more than $6,500 

per infringement to be sufficient compensation for the injured 

copyright holder.”) (collecting cases awarding between $750 and $6,500 

per infringement); Flanagan, 2014 WL 2957701 at *4 (“[A]n award of 

$1,500.00 per infringement is reasonable and will deter future 

infringements as well as compensate the Plaintiff.”); Malibu Media, 

LLC v. Cowham, No. 3:13-CV-00162, 2014 WL 2453027, at *2 (N.D. Ind. 

June 2, 2014) ($1,500 per infringement); PHE, Inc. v. Does 1-122, No. 

13-CV-786, 2014 WL 1856755, at *3 (N.D. Ill. May 7, 2014) (awarding 

$1,500 per infringement and $6,000 total); W. Coast Prods., Inc. v. 

Garrett, No. 4:12CV01551, 2014 WL 752670, at *3 (E.D. Mo. Feb. 25, 

2014) (awarding $3,250 for one infringement); Purzel Video GmbH v. 

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Biby, No. 13-CV-01172, 2014 WL 37299 (D. Colo. Jan. 6, 2014) (awarding 

$2,250 for one infringement); Bait Prods. PTY Ltd. v. Aguilar, No. 

8:13-CV-161-T-31DAB, 2013 WL 5653357 (M.D. Fla. Oct. 15, 2013) (“The 

vast majority of other courts assessing statutory damages in similar 

cases in which the defendants have downloaded copyrighted material via 

bit torrent have assessed damages of approximately $6,000 based on an 

inference of willfulness[.]”) (collecting cases); Collins v. Sangster, 

No. 11-CV-01773, 2012 WL 458905 (D. Md. Feb. 10, 2012) (“[T]he Court 

finds it unnecessary to determine whether Defendant's infringement 

was ̔willful’ because it finds that a statutory damages award of 

$6,000 pursuant to 17 U.S.C. § 504(c)(1) would sufficiently reimburse 

Plaintiff for Defendant's participation in the infringing swarm and 

would adequately discourage wrongful conduct. . . . . [T]he vast 

majority of courts to consider statutory damages in similar cases 

regarding copyright infringement by use of BitTorrent or other online 

media distribution systems have found damages of up to $6,000 per work 

to be sufficient.”). Indeed, this Court has recently held that an 

award of $6,000 in statutory damages properly accounts for defendant’s 

gain, plaintiff’s loss, and the public’s interest in deterring future 

violations. The Power of Few, LLC v. John Does 1-11, Case No. 2:13-cv839 (S.D. Ohio Oct. 30, 2014). This Court now reaffirms that 

conclusion. 

Plaintiff also asks that the Court enjoin defendant from directly 

or indirectly infringing plaintiff’s copyrighted works. The 

injunction sought by plaintiff would prohibit defendant’s use of the 

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internet to reproduce or distribute plaintiff’s motion pictures 

without license or express permission. Plaintiff also asks that the 

Court order defendant to destroy all copies of Dawn Rider downloaded 

by him onto any computer hard drive or server or transferred onto any 

physical medium or device in defendant’s possession, custody, or 

control. The Copyright Act authorizes temporary or final injunctive 

relief as a remedy for infringement “on such terms as [the court] may 

deem reasonable to prevent or restrain infringement of a copyright.” 

17 U.S.C. § 502(a). It is well established “that a showing of past 

infringement and a substantial likelihood of future infringement 

justifies issuance of a permanent injunction.” Bridgeport Music, Inc. 

v. Justin Combs Pub., 507 F.3d 470, 492 (6th Cir. 2007) (citations and 

quotations omitted). “Not only is the issuance of a permanent 

injunction justified ‘when a copyright plaintiff has established a 

threat of continuing infringement, he is entitled to an injunction.’” 

Id. (emphasis in original) (quoting Walt Disney Co. v. Powell, 897 

F.2d 565, 567 (D.C. Cir. 1990)). Otherwise, an award of damages 

without injunctive relief would amount to a “̔forced license to use 

the creative work of another.’” Id. (quoting Silverstein v. Penguin 

Putnam, Inc., 368 F.3d 77, 84 (2d Cir. 2004)). 

 In the case presently before the Court, plaintiff has established 

past infringement by defendant. Considering the factual allegations 

in the Amended Complaint, the nature of the BitTorrent system, see 

Patrick Collins, Inc. v. Gillispie, No. 11-CV-01776, 2012 WL 666001, 

at *4-5 (D. Md. Feb. 23, 2012) (“Given the nature of the BitTorrent 

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system, the Court finds that a permanent injunction is necessary to 

protect Plaintiff's ownership rights in this instance.”), and the 

nature of the copyrighted work, see Malibu Media, LLC v. Schelling, 

No. 13-11436, 2014 WL 3400580 (E.D. Mich. July 8, 2014) (“̔[P]ermanent 

injunctions are typically granted in situations involving unlawful 

infringement of copyrights in . . . compositions because of the strong 

probability that unlawful performances of other copyrighted material 

will occur.’”) (quotations omitted) (quoting Disney Enters., Inc. v. 

Farmer, 427 F. Supp. 2d 807, 819 (E.D. Tenn. 2006)), the Court 

concludes that plaintiff has sufficiently established a continuing 

threat to its copyright. See Jobete Music Co., Inc. v. Johnson 

Commc'ns, Inc., 285 F. Supp. 2d 1077, 1092 (S.D. Ohio 2003) (“[C]ourts 

have traditionally granted permanent injunctions if liability is 

established and a continuing threat to a copyright exists.”) 

(quotations omitted). Plaintiff’s request for permanent injunctive 

relief is therefore meritorious. 

Plaintiff also seeks $4,042.50 in attorneys’ fees, and $360.70 in 

costs. Plaintiff itemized its costs and its counsel declared that he 

spent 10.50 hours prosecuting plaintiff’s claims against defendant at 

a rate of $385 per hour. Declaration of Counsel in Support of Motion 

for Default Judgment, attached to Plaintiff’s Motion. The Court has 

the discretion to award fees to the prevailing party in a copyright 

infringement action. 17 U.S.C. § 505. The United States Court of 

Appeals for the Sixth Circuit has identified factors to be considered 

in determining whether to award attorneys’ fees, including such 

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factors as “̔frivolousness, motivation, objective unreasonableness 

(both in the factual and in the legal components of the case) and the 

need in particular circumstances to advance considerations of 

compensation and deterrence.’” Zomba Enters., Inc. v. Panorama 

Records, Inc., 491 F.3d 574, 589 (6th Cir. 2007) (quoting Fogerty v. 

Fantasy, Inc., 510 U.S. 517, 534 (1994)). “The grant of fees and 

costs ̔is the rule rather than the exception and they should be 

awarded routinely.’” Bridgeport Music, Inc. v. WB Music Corp., 520 

F.3d 588, 592 (6th Cir. 2008) (quoting Positive Black Talk Inc. v. 

Cash Money Records, Inc., 394 F.3d 357, 380 (5th Cir. 2004)). 

 The Court concludes that plaintiff is entitled to an award of 

reasonable attorneys’ fees and costs. However, the Court also 

concludes that plaintiff’s request for $4,042.50 in attorneys’ fees is 

unreasonable. This action is one of numerous actions filed by 

plaintiff through this counsel in this Court using nearly identical 

pleadings and motions, and progressing in nearly identical fashion. 

Every case names a group of John Doe defendants, who are identified 

only by IP addresses, and alleges that the defendants conspired with 

other infringers on the BitTorrent network to copy and/or distribute 

plaintiff’s copyrighted motion picture. Plaintiff then files a motion 

for leave to serve discovery on internet service providers prior to 

the Rule 26(f) conference in order to determine each defendant’s true 

identity. Once the defendant has been identified, plaintiff files an 

amended complaint identifying the defendant or defendants by name. 

Although there “is nothing inherently wrong with this practice,” it is 

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“the essence of form pleading,” Schelling, 2014 WL 3400580 at *2, and 

casts doubt on the number of hours expended by plaintiff’s counsel on 

this matter. This is compounded by the fact that plaintiff named 

sixty-four John Doe defendants in the Complaint. Despite the number 

of defendants and plaintiff’s use of what are essentially form 

complaints and motions, plaintiff’s counsel represents that 5.75 hours 

were spent filing the complaint and the motion for expedited discovery 

to prosecute plaintiff’s claims against this particular defendant. 

Plaintiff’s counsel also billed one quarter-hour to review a two page 

order issued by this Court and a notice issued by this Court, despite 

the fact that the order and notice applied to multiple defendants and 

were similar or even identical to the orders and notices issued in 

many other cases prosecuted in this Court. The Court also notes that 

plaintiff’s requested attorneys’ fees far exceed what other courts 

have awarded in similar circumstances. See Schelling, 2014 WL 3400580 

(awarding $555 as a reasonable attorneys’ fee when the plaintiff 

requested $2,550 for eight and one-half hours of work billed at $300 

per hour); Flanagan, 2014 WL 2957701 ($1,182 in attorneys’ fees); 

Biby, 2014 WL 37299 ($676.66 in attorneys’ fees and costs); Bossard, 

976 F. Supp. 2d at 931 ($525 in attorneys’ fees); Cowham, 2014 WL 

2453027 at *3 ($1,182 in attorneys’ fees); Patrick Collins, Inc. v. 

Lowery, No. 1:12-CV-00844-TWP, 2013 WL 6246462 (S.D. Ind. Dec. 3, 

2013) ($2,550 in attorneys’ fees); PHE, Inc., 2014 WL 1856755 at *4 

($2,573.32 in attorneys’ fees); Garrett, 2014 WL 752670, at *4 ($480 

in attorneys’ fees); Aguilar, 2013 WL 5653357 ($1,300 in attorneys’ 

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fees); Sangster, 2012 WL 458905 ($500 in attorneys’ fees); 

Achte/Neunte Boll King Beteiligungs GMBH & Co KG v. Palmer, No. 2:11-

CV-70-FTM-29SPC, 2011 WL 4632597 (M.D. Fla. Oct. 6, 2011) ($2,655 in 

attorneys’ fees); Malibu Media, LLC v. Babb, No. 13-CV-00320, 2013 WL 

5387435, at *9 (D. Colo. Sept. 26, 2013) ($2,550 in attorneys’ fees); 

Gillispie, 2012 WL 666001 at *4 ($1,492 in attorneys’ fees). This 

Court has held, in a similar case, that $1,500 is a reasonable 

attorneys’ fee. The Power of Few, LLC v. John Does 1-11, Case No. 

2:13-cv-839 (S.D. Ohio Oct. 30, 2014). The Court is satisfied that 

$1,500 is likewise a reasonable attorneys’ fee in this case. The 

Court therefore concludes that plaintiff is entitled to attorneys’ 

fees and costs, pursuant to 17 U.S.C. § 505, in the total amount of 

$1,860.70. 

III. 

 It is therefore RECOMMENDED that Plaintiffs’ Motion for Default 

Judgment, ECF 59, be GRANTED in part and DENIED in part. 

 It is SPECIFICALLY RECOMMENDED that Defendant James Mclean be 

PERMANENTLY ENJOINED from directly or indirectly infringing 

plaintiff’s copyrighted works, including by use of the internet to 

reproduce, copy, distribute, or make available for distribution to the 

public plaintiff’s copyrighted works, unless plaintiff provides 

defendant with a license or express permission. 

 It is RECOMMENDED that Defendant James Mclean be ORDERED to 

destroy all copies of plaintiff’s motion picture Dawn Rider that 

defendant James Mclean has downloaded onto any computer hard drive or 

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server without plaintiff’s authorization and all copies that have been 

transferred onto any physical medium or device in defendant James 

Mclean’s possession, custody, or control. 

 It is also RECOMMENDED that plaintiff be AWARDED statutory 

damages as against defendant James Mclean in the amount of $6,000 and 

attorneys’ fees and costs in the total amount of $1,860.70. 

IV. 

 If any party seeks review by the District Judge of this Report 

and Recommendation, that party may, within fourteen (14) days, file 

and serve on all parties objections to the Report and Recommendation,

specifically designating this Report and Recommendation, and the part 

thereof in question, as well as the basis for objection thereto. 28 

U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b). Response to objections 

must be filed within fourteen (14) days after being served with a copy 

thereof. Fed. R. Civ. P. 72(b). 

The parties are specifically advised that the failure to object 

to the Report and Recommendation will result in a waiver of the right 

to de novo review by the District Judge and waiver of the right to 

appeal the judgment of the District Court. See, e.g., Pfahler v. 

Nat’l Latex Prod. Co., 517 F.3d 816, 829 (6th Cir. 2007) (holding that 

“failure to object to the magistrate judge’s recommendations 

constituted a waiver of [the defendant’s] ability to appeal the 

district court’s ruling”); United States v. Sullivan, 431 F.3d 976, 

984 (6th Cir. 2005) (holding that defendant waived appeal of district 

court’s denial of pretrial motion by failing to timely object to 

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magistrate judge’s report and recommendation). Even when timely 

objections are filed, appellate review of issues not raised in those 

objections is waived. Robert v. Tesson, 507 F.3d 981, 994 (6th Cir. 

2007) (“[A] general objection to a magistrate judge’s report, which 

fails to specify the issues of contention, does not suffice to 

preserve an issue for appeal . . . .”) (citation omitted)). 

January 8, 2015 s/Norah McCann King_______ 

 Norah McCann King 

 United States Magistrate Judge 

 

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