Page 1 - PLAINTIFF’S MOTION FOR ENTRY OF DEFAULT JUDGMENT: PERMANENT

INJUNCTION

TDS/tn1/7329001

Department of Justice

1162 Court Street NE

Salem, OR 97301-4096

(503) 934-4400 / Fax: (503) 373-7067

ELLEN F. ROSENBLUM #753239

Attorney General

TIMOTHY D. SMITH #914374

Assistant Attorney General

Department of Justice

1162 Court Street NE

Salem, OR 97301-4096

Telephone: (503) 934-4400

Facsimile: (503) 373-7067

E-mail: tim.smith@doj.state.or.us

Attorneys for State of Oregon

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF OREGON

STATE OF OREGON, Acting by and through

the DEPARTMENT OF CORRECTIONS,

Plaintiff,

v.

NICHOLAS ADAM AMES,

Defendant.

Case No. 6:16-cv-345-TC

PLAINTIFF’S MOTION FOR ENTRY OF

DEFAULT JUDGMENT: PERMANENT

INJUNCTION

CONFERRAL

Pursuant to LR 7.1 (a)(1)(A), the undersigned counsel for Plaintiff hereby certifies that,

Defendant Nicholas Adam Ames failed to appear or answer the complaint filed in this matter and

the Court entered a default against Defendant on June 20, 2016. No opposition is anticipated.

MOTION FOR ENTRY OF DEFAULT JUDGMENT

The Court entered a default against Defendant on June 20, 2016. Dkt 6. Pursuant to

FRCP 55 and 17 U.S.C. § 505, plaintiff, the State of Oregon, Acting by and through the

Department of Corrections (the “State of Oregon”) moves the Court for entry of judgment by

default against Defendant Nicholas Adam. In support of this motion the State of Oregon relies

upon the following memorandum, the Declaration of Timothy D. Smith in Support of Plaintiff’s

Motion for Entry of Default Judgment (“Smith Declaration”), and the record in this case.

Case 6:16-cv-00345-TC Document 7 Filed 06/28/16 Page 1 of 5
Page 2 - PLAINTIFF’S MOTION FOR ENTRY OF DEFAULT JUDGMENT: PERMANENT

INJUNCTION

TDS/tn1/7329001

Department of Justice

1162 Court Street NE

Salem, OR 97301-4096

(503) 934-4400 / Fax: (503) 373-7067

Specifically, the State of Oregon moves the Court for entry of a Default Judgment and

Order against Defendant permanently enjoining Defendant, Nicholas Adam Ames from directly

or indirectly infringing the State of Oregon’s rights under federal or state law in the video

entitled “Prison Cell Extraction,” https://youtu.be/zQok8tROUFs, (the “Video”) and any work,

whether now or in existence or later created, that is owned or controlled by the State of Oregon

(‘the State of Oregon’s Works’), including without limitation by using the Internet or any online

media distribution system to reproduce (i.e. download) any of the State of Oregon’s Works, to

distribute (i.e. upload) any of the State of Oregon’s Works, or to make any of the State of

Oregon’s Works available for distribution to the public or for public display.

The State of Oregon intends to file separately for costs and attorney fees pursuant to

FRCP 54.

MEMORANDUM

Once the Court enters a default against a party, all allegations other than damages are

presumed to be true. Geddes v. United Financial Group, 559 F.2d 557, 560 (9th Cir. 1977) citing

Pope v. United States, 323 U.S. 1, 12, (1944). As such, the allegations of the State of Oregon’s

complaint are deemed true and proven.

1. Defendant is not subject to the Servicemembers Civil Relief Act.

Defendant is not active in the military nor is he subject to the Servicemembers Civil

Relief Act. 50 USC App. § 521. Dkt. 5.

2. The State of Oregon has proven copyright infringement.

To prevail on a copyright infringement claim a plaintiff must establish (1) ownership of a

valid copyright and (2) copying of constituent elements of the work that are original. Kelly v.

Arriba Soft Corp., 336 F.3d 811, 817 (9th Cir. 2003). The State of Oregon’s complaint, the

allegations of which must be taken as true, establishes both of these elements. Dkt. 1, ¶¶ 9-23.

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Page 3 - PLAINTIFF’S MOTION FOR ENTRY OF DEFAULT JUDGMENT: PERMANENT

INJUNCTION

TDS/tn1/7329001

Department of Justice

1162 Court Street NE

Salem, OR 97301-4096

(503) 934-4400 / Fax: (503) 373-7067

3. Defendant’s conduct was willful.

Allegations that a defendant acted willfully are properly deemed to be true once the court

enters a default. Derek Andrew, Inc. v. Poof Apparel Corp., 528 F.3d 696, 702 (9th Cir. 2008).

The admitted facts of this case dictate that the Defendant willfully infringed the State of

Oregon’s registered copyrights. Dkt.1, ¶¶ 9-23. Nothing short of filing an injunction is likely to

alter the Defendant’s infringing behavior.

4. The State of Oregon has suffered real harm.

The Video contains images illustrating the techniques that the Department of Corrections

uses to remove a prisoner from a Department of Corrections’ prison cell. Dkt. 1 at ¶ 9. By

making the Department of Correction’s security techniques public, Defendant has endangered

the Department of Correction’s management and administration of the Department of

Corrections’ institutions, parole and probation services, community corrections, and other

functions related to state programs for corrections. As a result of Defendant’s infringement of the

State of Oregon’s copyrights and exclusive rights under copyright, the State of Oregon has

suffered an irreparable injury. Dkt. 1 at ¶ 22.

5. The State of Oregon seeks injunctive relief to prevent continued infringement.

The State of Oregon seeks and is entitled to an injunction pursuant to 17 U.S.C. § 501, et

seq.. 17 U.S.C. § 502(a) authorizes an injunction to "prevent or restrain infringement of a

copyright." Defendant by default has admitted to the willful conduct in this case. Based on

Defendant’s willful conduct, the State of Oregon asserts that an injunction is proper.

CONCLUSION

For the foregoing reasons, the State of Oregon moves this Court to enter a judgment

enjoining Defendant, Nicholas Adam Ames from directly or indirectly infringing the State of

Oregon’s rights under federal or state law in the video entitled “Prison Cell Extraction,”

https://youtu.be/zQok8tROUFs, and any work, whether now or in existence or later created, that

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Page 4 - PLAINTIFF’S MOTION FOR ENTRY OF DEFAULT JUDGMENT: PERMANENT

INJUNCTION

TDS/tn1/7329001

Department of Justice

1162 Court Street NE

Salem, OR 97301-4096

(503) 934-4400 / Fax: (503) 373-7067

is owned or controlled by the State of Oregon (‘the State of Oregon’s Works’), including without

limitation by using the Internet or any online media distribution system to reproduce (i.e.

download) any of the State of Oregon’s Works, to distribute (i.e. upload) any of the State of

Oregon’s Works, or to make any of the State of Oregon’s Works available for distribution to the

public or for public display.

DATED: June 28, 2016.

ELLEN F. ROSENBLUM

Attorney General

s/ Timothy D. Smith

Timothy D. Smith, #914374

Assistant Attorney General

Of Attorneys for Plaintiff

E-mail: tim.smith@doj.state.or.us

Case 6:16-cv-00345-TC Document 7 Filed 06/28/16 Page 4 of 5
Page 1 - CERTIFICATE OF SERVICE

TDS/tn1/7329001

Department of Justice

1162 Court Street NE

Salem, OR 97301-4096

(503) 934-4400 / Fax: (503) 373-7067

CERTIFICATE OF SERVICE

I hereby certify that on June 28, 2016, I served the foregoing Motion for Entry of Default

Judgment upon the parties hereto by United States Postal Service, First Class Mail, postage

prepaid, a true, exact and full copy thereof to:

Nicholas Adam Ames

320 14th Ave.

Albany, OR 97322

By: s/ Timothy D. Smith

Timothy D. Smith, #914374

Assistant Attorney General

Attorneys for Plaintiff

Case 6:16-cv-00345-TC Document 7 Filed 06/28/16 Page 5 of 5