UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK

MALIBU MEDIA, LLC, | Civil Case No. 1:19-cv-07189-JGK Plaintiff; ORDER v. | USDS SDNY JOHN DOE subscriber assigned IP address ! DOCUMENT 908.116.191.111, : FILED

Defendant. | DATE FILED: _7/6/202\_ THIS MATTER having been opened to the Court by a consolidated motion on behalf of defendant John Doe subscriber assigned IP address 98.116.191.111 (“defendant”), through counsel, Leslie A. Farber, LLC, Leslie A. Farber, Esq., appearing, seeking an order (1) redacting defendant’s name and address permanently from certain documents, (2) entering a protective order permitting defendant to defend this matter pseudonymously, and enjoining plaintiff from revealing personal information about defendant absent permission from the Court; and the Court having considered the moving and opposing papers and any arguments of counsel, and good cause having been shown; ITS on this 2 day of wo □ 2026 .

ORDERED as follows: 1. The Motion to Seal Certain Materials [ECF No. 49] be and the same is hereby GRANTED; 2. Defendant’s request for Consent Protective Order is GRANTED; and 3. John Doe subscriber assigned JP address 98.116.191.111 shall proceed anonymously, as a “John Doe” or “John Doe subscriber assigned IP address 98.116.191.111” in this matter; 4. Plaintiff will maintain confidential and not disclose publicly or in this Court (except if under seal) the identity and contact information of this John Doe or of his/her immediate family; and

5. Redacted versions of the following documents shall be substituted for the originally filed documents by the Clerk of the Court: a, Amended Compiaint. [ECF No. 14]. b. Plaintiff’s request for Summons to be Issued. [ECF No. 15]. c. Summons Issued. [ECF No. 16]. d. Proposed Order on Second Letter Motion for Extension of Time to Effectuate Service of Summons and Amended Complaint. [ECF No. 17-1]. e. Order on Second Letter Motion for Extension of Time to Effectuate Service of Summons and Amended Complaint. [ECF No. 18]. f. Third Letter Motion for Extension of Time to Effectuate Service of Summons and Amended Complaint. [ECF No, 21-1 Proposed Form of Order]. g. Fourth Letter Motion for Extension of Time to Effectuate Service of Summons and Amended Complaint on Defendant. [ECF 23-1 Proposed Form of Order]. h. Order on Plaintiff’s Fourth Letter Motion for Extension of Time to Effectuate Service of Summons and Amended Complaint on Defendant. [ECF 24]. 1. Fifth Letter Motion for Extension of Time to Effectuate Service of Summons and Amended Complaint on Defendant. [ECF 27-1 Proposed Form of Order]. j. Order on Plaintiff's Fifth Letter Motion for Extension of Time to Effectuate Service of Summons and Amended Complaint on Defendant. [ECF No. 28]. k. Sixth Letter Motion for Extension of Time to Effectuate Service of Summons and Amended Complaint on Defendant. [ECF No. 29-1 Proposed Form of Order]. l. Order on Plaintiff's Sixth Letter Motion for Extension of Time to Effectuate Service of Summons and Amended Complaint on Defendant. [ECF No. 30]. m. Motion for Alternative Service. [ECF No. 31 Motion, 31-1 Exhibit A, 31-2 Proposed Form of Order]. n. Memorandum of Law in Support of Motion for Alternate Service on Defendant. [ECF No. 32]. oO. Order on Motion for Extension of Time and Alternative Service on Defendant. □□□□ No, 34]. p. Affidavit of Service of Process of Summons and Amended Complaint. [ECF No. 35]. q. Sixth Motion to Adjourn Initial Pretrial Conference and Extend the Deadline to File a Joint Discovery/case Management Plan. [ECF No. 36-1 Proposed Form of Order]. r. Proposed Clerk’s Certificate of Default [ECF No. 38], supporting Declaration [ECF No. 38-1]. S. Clerk’s Certificate of Default (entered). [ECF No. 39].

t. Motion for Entry of Final Default Judgment. [ECF No. 40 Motion, 40-1 Proposed Default Judgment, 40-3 Proposed Order to Show Cause]. U. Memorandum of Law in Support of Motion for Entry of Final Default Judgment. [ECF No. 41]. Vv. Declaration in Support of Motion for Entry of Final Default Judgment. [ECF No. 42]. Ww. Notice of Filing. [ECF No. 43]. X. Statement of Damages. [ECF No. 44]. y. Order. [ECF No. 45]. Z. Notice of Mailing. [ECF No. 46]. aa. Letter dated August 11, 2020. [ECF No. 47]. bb. Consent Order. [ECF No. 48]. ce. Plaintiff's Notice of Settlement. [ECF No. 49]. dd. | Memo Endorsement on Plaintiffs Notice of Settlement. [ECF No. 50). ee. AO 121 Form Copyright - Case Terminated. [ECF No.52]. ff. Motion to Seal and for Protective Order - Declaration of John Doe. [ECF No. 53-2]. oN SK YY C ser | 7/2. / =} Hop John G. Koeltl, U.S.D.J.

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UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK

tenn teen □□□□□□□□□□□□□□□□□□□□□□□□ OK MALIBU MEDIA, LLC, : Case No, 1:19-cv-07189-IGK Plaintiff, : : AMENDED COMPLAINT — : ACTION FOR DAMAGES FOR : PROPERTY RIGHTS : INFRINGEMENT Defendant. : cect pee □□□□□□□□□□□□□□□□□□□□□□ OK Plaintiff, Malibu Media, LLC, sues Defendant, RSONCMB) and alleges: Introduction 1. This matter arises under the United States Copyright Act of 1976, as amended,

et seq. (the “Copyright Act”). 2, Defendant is a persistent online infringer of Plaintiff's copyrights. Indeed, Defendant’s IP address as set forth on Exhibit A was used to illegally distribute each of the copyrighted movies set forth on Exhibit B. 3. Plaintiff is the registered owner of the copyrights set forth on Exhibit B (the “Copyrights-in-Suit’). Jurisdiction And Venue 4. This Court has subject matter jurisdiction over this action pursuant to 28 U.S.C. 3 1331 (federal question); and

(patents, copyrights, trademarks and unfair competition). 5. Plaintiff used proven IP address geolocation technology which has consistently worked in similar cases to ensure that the Defendant’s acts of copyright infringement occurred

using an Internet Protocol address (“IP address”) traced to a physical address located within this District, and therefore this Court has personal jurisdiction over the Defendant because (i) Defendant committed the tortious conduct alleged in this Amended Complaint in this State, and (ii) Defendant resides in this State and/or (iii) Defendant has engaged in substantial and not isolated business activity in this State. 6. Based upon experience filing over 1,000 cases the geolocation technology used by Plaintiff has proven to be accurate to the District level in over 99% of the cases. 7. Venue is proper in this District pursuant to

(b) and (c), because: (i) a substantial part of the events or omissions giving rise to the claims occurred in this District; and, (ii) the Defendant resides (and therefore can be found) in this District and resides in this State; additionally, venue is proper in this District pursuant

(a) (venue for copyright cases) because Defendant or Defendant’s agent resides or may be found im this District. Parties 8. Plaintiff, Malibu Media, LLC, (d/b/a “X-Art.com”) is a limited liability company organized and existing under the laws of the State of California and has its principal place of business located at 30700 Russell Ranch Road, Suite 250, Westlake Village, CA 91362. 9, Defendant, aeons). is an individual residing at NS) Noe ee.

Factual Background 1 Defendant Used the BitTorrent File Distribution Network To Infringe Plaintiff's Copyrights 10. The BitTorrent file distribution network (“BitTorrent”) is one of the most common peer-to-peer file sharing systems used for distributing large amounts of data, including, but not

limited to, digital movie files. 11. BitTorrent’s popularity stems from the ability of users to directly interact with each other in order to distribute a large file without creating a heavy load on any individual source computer and/or network, The methodology of BitTorrent allows users to interact directly with each other, thus avoiding the need for intermediary host websites which are subject to DMCA take down notices and potential regulatory enforcement actions. 12. In order to distribute a large file, the BitTorrent protocol breaks a file into many small pieces. Users then exchange these small pieces among each other instead of attempting to distribute a much larger digital file. 13. After the infringer receives all of the pieces of a digital media file, the infringer’s BitTorrent client software reassembles the pieces so that the file may be opened and utilized. 14. Each piece of a BitTorrent file is assigned a unique cryptographic hash value. 15. □ The cryptographic hash value of the piece (“piece hash”) acts as that piece’s unique digital fingerprint. Every digital file has one single possible cryptographic hash value correlating to it. The BitTorrent protocol utilizes cryptographic hash values to ensure each piece is properly routed amongst BitTorrent users as they engage in file sharing. 16. The entirety of the digital media file also has a unique cryptographic hash value (“file hash”), which acts as a digital fingerprint identifying the digital media file (which contains

a video or series of videos). Once infringers complete downloading all pieces which comprise a digital media file, the BitTorrent software uses the file hash to determine that the file is complete and accurate. 17. Plaintiff's investigator, IPP International UG established a direct TCP/IP connection with the Defendant’s IP address as set forth on Exhibit A.

18. Plaintiff's investigator downloaded from Defendant one or more pieces of each of the digital media files identified by the file hashes listed on Exhibit A. 19. Each digital media file as identified by the file hash listed on Exhibit A correlates to a copyrighted film owned by Plaintiff, as set forth on Exhibit B. 20. A full copy of each digital media file was downloaded from the BitTorrent file distribution network, and it was confirmed through independent calculation that the file hash correlating to each file matched what is listed on Exhibit A. At no point was Plaintiff's copyrighted content uploaded to any other BitTorrent user. 21. Further, each digital media file as identified by the file hash listed on Exhibit A has been verified to contain a digital copy of a movie that is identical (or alternatively, strikingly similar or substantially similar) to Plaintiff's corresponding original copyrighted work listed on Exhibit B. 22. Plaintiff owns the copyrights to the original works (the “Copyrights-in-Suit”). An overview of the Copyrights-in-Suit, including each hit date, date of first publication, registration date, and registration number issued by the United States Copyright Office is set forth on Exhibit B. 23. Defendant downloaded, copied, and distributed a complete copy of Plaintiffs works without authorization as enumerated on Exhibits A and B. 24. ‘Plaintiff's investigator connected, over a course of time, with Defendant’s IP address for each digital media file identified by the hash value as listed on Exhibit A. The most

recent TCP/IP connection between IPP and the Defendant's IP address for each file hash value listed on Exhibit A is included within the column labeled Hit Date UTC. UTC refers to Universal Time which is utilized for air traffic control as well as for computer forensic purposes.

25. -Plaintiff’s evidence establishes that Defendant is a habitual and persistent BitTorrent user and copyright infringer. Miscellaneous 96. All conditions precedent to bringing this action have occurred or been waived.

27. Plaintiff has retained counsel and is obligated to pay said counsel a reasonable fee

for its services. COUNTI Direct Infringement Against Defendant

28. The allegations contained in paragraphs 1-27 are hereby re-alleged as if fully set

forth herein. 29. Plaintiff is the owner of the Copyrights-in-Suit, as outlined in Exhibit B, each of

which covers an original work of authorship. 30. By using BitTorrent, Defendant copied and distributed the constituent elements of

each of the original works covered by the Copyrights-in-Suit. 31. Plaintiff did not authorize, permit or consent to Defendant’s distribution of tts

works. 32. Asaresult of the foregoing, Defendant violated Plaintiff's exclusive right to:

(A) Reproduce the works in copies, in violation of

(1) and 501; (B) Redistribute copies of the works to the public by sale or other transfer of ownership,

or by rental, lease or lending, in violation of 17 ULS.C. §§ 106(3) and 501; (C) Perform the copyrighted works, in violation of

(4) and 501, by showing the works’ images in any sequence and/or by making the sounds accompanying the works

audible and transmitting said performance of the works, by means of a device or process, to

members of the public capable of receiving the display (as set forth in 17 U.S.C. § 101’s definitions

of “perform” and “publically” perform); and (D) Display the copyrighted works, in violation of 17 U.S.C. 38 106(5) and 501, by showing individual images of the works non-sequentially and transmitting said display of the works by means of a device or process to members of the public capable of receiving the display (as set forth in 17 U.S.C. § 101’s definition of “publically” display). 33. Defendant’s infringements were committed “willfully” within the meaning of

(c)(2). WHEREFORE, Plaintiff respectfully requests that the Court: (A) Permanently enjoin Defendant and all other persons who are in active concert or participation with Defendant from continuing to infringe Plaintiff's copyrighted works; (B) Order that Defendant delete and permanently remove the digital media files relating to Plaintiffs works from each of the computers under Defendant’s possession, custody or control; (C) Order that Defendant delete and permanently remove the infringing copies of the works Defendant has on computers under Defendant’s possession, custody or control; (D) Award Plaintiff statutory damages per infringed work pursuant to

- (a) and (c); (E) Award Plaintiff its reasonable attorneys’ fees and costs pursuant to

; and (F) Grant Plaintiff any other and further relief this Court deems just and proper. DEMAND FOR A JURY TRIAL Plaintiff hereby demands a trial by jury on all issues so triable. Dated: December 15, 2019 Respectfully submitted, By: /s/ Kevin T. Conway Kevin T. Conway, Esq. (KC-3347)}

80 Red Schoolhouse Road, Suite 110 Spring Valley, New York 10977-6201 T: 845-352-0206 F: 845-352-0481 E-mail: [email protected] Attorney for Plaintiff

CERTIFICATE OF SERVICE [hereby certify that on December 15, 2019, I electronically filed the foregoing document with the Clerk of the Court using CM/ECF and that service was perfected on all counsel of record and interested parties through this system. By: /s/ Kevin T. Conway

IPP Internationa! U.G. Declaration Exhibit A File Hashes for IP Address 938.116.191.711 ISP: Verizon Internet Services Physical Location: New York, NY

|fileHash ae 05/16/2019 21:48:06 Cindy Sauna Sex 05/16/2019 21:44:08 Stunning Sexy Shower 05/16/2019 21:41:35 Moonlight Sex Games 05/16/2019 713050 Afternoon Rendezvous 05/16/2019 21:38:23 Workout and Stunning Hot Sex 05/16/2019 21:27:46 Like The First Time 03/22/2019 01:11:36 XXX Threeway Games 03/21/2019 00:01:47 Four Way In 4K 03/20/2019 23:58:55 Cum In For An Orgy 03/15/2019 05:43:26 Honeymoon Sex 03/15/2019 05:43:06 Five Reasons to Love Sex with Blondes 03/15/2019 05:42:59 Moving Day Sex 03/15/2019 05:42:43 Young 18 Year Old Couple in Hot Summer Sex 03/15/2019 05:34:28 Summertime Sex 03/15/2019 05:27:50 Teach Me About Sex 03/15/2019 05:24:22 Supermodel Sex

Total Statutory Claims Against Defendant: 16

EXHIBIT A SNY556

Copyrights-In-Suit for IP Address 98.116.191.111 Verizon Internet Services New York, NY

□□ ee ee = Number] Publication “Registration == | UT@:

Sexy Shower 05/16/2019 Moonlight Sex Games 05/16/2019 Rendezvous 05/16/2019 Workout and Stunning Hot Sex 05/16/2019 Like The First Time 05/16/2019 XXX Threeway Games 03/22/2019

Five Reasons to Love Sex with 03/15/2019 Blondes

Young 18 Year Old Couple in 03/15/2019 Hot Summer Sex Summertime Sex 03/15/2019 Teach Me About Sex 03/15/2019

Total Malibu Media, LLC Copyrights Infringed: 716

EXHIBIT B

AO 440 (Rev, 06/12) Summous in a Civil Action Rey. Oot) anne UNITED STATES DISTRICT COURT for the Southern District of New York

MALIBU MEDIA, LLC ) ) Plaintiff(s) ) v. Civil Action No. 1:19-cv-07189-JGK a) Ken) ) ) ) ) Defendant(s) ) SUMMONS IN A CIVIL ACTION To: (Defendant’s name and address) Fy XeqyaD)

A lawsuit has been filed against you. Within 21 days after service of this summons on you (not counting the day you received it) — or 60 days if you are the United States or a United States agency, or an officer or employee of the United States described in Fed. R. Civ. P. 12 (a)(2) or (3) — you must serve on the plaintiff an answer to the attached complaint or a motion under Rule 12 of the Federal Rules of Civil Procedure. The answer or motion must be served on the plaintiff or plaintiff's attorney, whose name and address are: Kevin T. Conway, Esq. 80 Red Schoolhouse Road, Suite 110 Spring Valley, New York 10977-6201 T: 845-352-0206 F: 845-352-0481 E-mail: [email protected] If you fail to respond, judgment by default will be entered against you for the relief demanded in the complaint. You also must file your answer or motion with the court.

CLERK OF COURT

Date: Signature of Clerk or Deputy Clerk

446 (Rev. 06/12) Sammons in a Civil Action (Page 2)

Civil Action No. 1:19-cv-01510-NRB PROOF OF SERVICE (This section should not be filed with the court unless required by Fed. R. Civ. P. 4 ()) This summons for (name of individual and title, if any) was received by me on (dare) .

( I personally served the summons on the individual at (place) on (date)

left the summons at the individual’s residence or usual place of abode with (name) , aperson of suitable age and discretion who resides there, on (date) , and mailed a copy ic the individual’s last known address; or I served the summons on (name of individual) , who Is designated by law to accept service of process on behalf of (name of organization) On (date) 5 or Lreturned the summons unexecuted because ;or Other (specify):

My fees are $ for travel and $ for services, for a total of $ 0.00 .

I declare under penalty of perjury that this information is true.

Date: □ Server's signature

Printed name and title

Server's address Additional information regarding attempted service, etc:

AO 440 (Rev, 06/12) Summons in a Civil Action 440 (Rev, 06/12) Summons 19 a UNITED STATES DISTRICT COURT for the Southern District of New York

MALIBU MEDIA, LLC ) ) Plaintiffs) ) v. Civil Action No. 1:19-cv-07189-JGK Stab) Nous AR) ) ) )

Defendant(s) ) SUMMONS IN A CIVIL ACTION To: (Defendant’s name and address) ASD) Neues)

A lawsuit has been filed against you. Within 21 days after service of this summons on you (not counting the day you received it) — or 60 days if you are the United States or a United States agency, or an officer or employee of the United States described in Fed. R. Civ. 12 (a)(2) or (3) — you must serve on the plaintiff an answer to the attached complaint or a motion under Rule 12 of the Federal Rules of Civil Procedure. The answer or motion must be served on the plaintiff or plaintiff’s attorney, whose name and address are: Kevin T. Conway, Esq. 80 Red Schoolhouse Road, Suite 110 Spring Valley, New York 10977-6201 T: 845-352-0206 F: 845-352-0481 E-mail: [email protected] If you fail to respond, judgment by default will be entered against you for the relief demanded in the complaint. You also must file your answer or motion with the court.

CLERK OF COURT

Date. December 16, 2019 /S/ James aesieeyy □ MES 3 3 Ny . Signature of Clerk or Deputy Clerk BEAR ee ay, Fol PO Ny agp Fee ON VEY LOE □□□ □□□ % foe PENS Pees j = a ‘i ia Ps an Lf

440 (Rev, 06/12) Summons in a Civil Action (Page 2) ne Civil Action No. 1:19-cv-01510-NRB PROOF OF SERVICE (This section should not be filed with the court unless required by Fed. R. Civ. P. 4 (D) This summons for (name of individual and title, if any) was received by me on (date) .

personally served the summons on the individual at (place) On (date) ; or 11 I left the summons at the individual’s residence or usual place of abode with (name) , a person of suitable age and discretion who resides there, on (date) , and mailed a copy to the individual’s last known address; or CG I served the summons on (name of individual) , who is designated by law to accept service of process on behalf of (name of organization) on fdate) OF (J Ereturned the summons unexecuted because 3 or Other (specify):

My fees are $ for travel and $ for services, for a total of $ 0.00 .

I declare under penalty of perjury that this information is true.

Date: □□ Server’s signature

Printed name and title

Server’s address Additional information regarding attempted service, etc:

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK ee sem nn nenmmcinaaen MALIBU MEDIA, LLC, : : Case No. 1:19-cv-07189-JGK Plaintiff, : Judge Koeltl Vs. : SB). Defendant. : ete enter neneenn ne ORDER ON PLAINTIFF’S SECOND MOTION FOR EXTENSION OF TIME WITHIN WHICH IT HAS TO EFFECTUATE SERVICE ON DEFENDANT THIS CAUSE came before the Court upon Plaintiff's Second Motion for Extension of Time Within Which it Has to Serve Defendant with a Summons and Complaint (the “Motion”), and the Court being duly advised in the premises does hereby: ORDER AND ADJUDGE: Plaintiff's Motion is granted. Plaintiff shall have until January 27, 2020, to effectuate service of a summons and Complaint upon Defendant. SO ORDERED this day of , 2019.

By: UNITED STATES DISTRICT JUDGE

Cease Lile-tv-O/ dos sonk VOCUTNICMLI: Ce Lelesad Faye st

KEVIN T. CONWAY, ESQ. ATTORNEY AT LAW LICENSED IN NY., Nu, CT. 80 Red Schoolhouse Road, Suite 110 c/o DeCotiis, Fitzpatrick, Cole & Giblin, LLC Spring Valley, NY 10977 500 Frank W. Burr Blvd., Ste. 31 Tel: (845) 352-0206 Teaneck, NJ 07666 Fax: (845) 352-0481 Tel: (201) 928-1100 December 24, 2019 . APPLICATION GRANTIED WERED The Honorable Judge John G. Koeltl ao SO ORDER □ United States Courthouse \ ve By ALY 500 Pearl Street A (ee -- New York, NY 10007 12227119 ~"Jonn G, KoeltlU.S.D.J. Re: 1:19-cv-07189-JGK Plaintiffs Second Letter Motion for Extension of Time within Which to Effectuate Service on Defendant Dear Judge Koeltl: Pursuant to Fed, R. Civ. P. 4(m), Plaintiff, Malibu Media, LLC, move for entry of an order extending the time within which Plaintiff has to serve the John Doe Defendant with a Summons and Complaint, and states: i, Plaintiff commenced this action against the internet subscriber assigned IP 98.116.191.111 (“Defendant”) on July 31, 2019, at which time it filed a complaint alleging that Defendant copied and distributed one or more of Plaintiffs copyrighted works, all without Plaintiff's consent. See CM/ECF 1. Plaintiff asserted a claim for direct copyright infringement, and requested that Defendant delete and permanently remove, and be enjoined from continuing to infringe, Plaintiff's copyrighted works. See

. On September 3, 2019, Plaintiff was granted leave to serve a third-party subpoena on Defendant's ISP, Verizon, to obtain the Defendant’s identifying information [CM/ECF 7]. Plaintiff issued the subpoena on September 8, 2019 and received the ISP’s response on or about

November 18, 2019. 3. Upon receipt of the subscriber’s identifying information, Plaintiff conducted a thorough investigation and determined that a good faith basis exists to name the subscriber as the defendant infringer. 4, Accordingly, Plaintiff filed its Amended Complaint to name the Defendant [CM/ECF 14] and requested that the Clerk issue a summons as to the Defendant. The Court issued the summons on December 16, 2019, - §, On or about December 19, 2019, Plaintiff sent the Summons and Amended Complaint to its process server. The process server is attempting to serve the Defendant at his home. 6. Pursuant to this Court’s Order on Plaintiffs First Motion for Extension of Time Within Which It Has to Effectuate Service on John Doe Defendant, [CM/ECF 11], Plaintiff was required to effectuate service on the Defendant no later than December 23, 2019. 7, Procedurally, Plaintiff respectfully requests that the time within which it has to effectuate service of the summons and Complaint on Defendant be extended until at least forty- five (35) days, or until January 27, 2020. The additional time will allow Plaintiff's process server to effectuate service. 8. This motion is made in good faith and not for the purpose of undue delay. 9 None of the parties will be prejudiced by the granting of this extension, WHEREFORE, Plaintiff respectfully requests that the time within which it has to effectuate service of the summons and Complaint on Defendant be extended until January 27, 2020. A proposed order is attached for the Court’s convenience.

2 -

Dated: December 24, 2019 Respectfully submitted, By: /s/ Kevin T. Conway Kevin T. Conway, Esq. (KC-3347) 80 Red Schoolhouse Road, Suite 110 Spring Valley, New York 10977-6201 T: 845-352-0206 F: 845-352-0481 E-mail: [email protected] Attorney for Plaintiff

CERTIFICATE OF SERVICE I hereby certify that on December 24, 2019, I electronically filed the foregoing document with the Clerk of the Court using CM/ECF and that service was perfected on all counsel of record and interested parties through this system. By: /s/ Kevin T. Conway

Case 1:19-cv-07189-JGK Document tf-t rileu teteaw Tessa

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORIs

reteset nena nate IG MALIBU MEDIA, LLC, : : Case No. 1:19-cv-07189-JGE Plaintiff, : : Judge Koeltl VS. : Bea NeL=) Defendant. : or ee nttennene eter etinnemmennen nana mnnnnenammmnen I

ORDER ON PLAINTLIEE’S SECOND MOTION FOR EXTENSION OF TIME WITHIN WHICH IT HAS TO EFFECTUATE SERVICE ON DEFENDANT THIS CAUSE came before the Court upon Plaintiff's Second Motion for Extension of

Time Within Which it Has to Serve Defendant with a Summons and Complaint (the “Motion”),

and the Court being duly advised in the premises docs hereby: ORDER AND ADJUDGE: Plaintiff's Motion is granted. Plaintiff shall have until January 27, 2020, to effectuate service of a summons and Complaint upon Defendant.

SO ORDERED this__ day of , 2019.

By: UNITED STATES DISTRICT JUDGE

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK reper eee eee tinenemmnemnnennnn MALIBU MEDIA, LLC, : Case No. 1:19-cv-07189-JGK Plaintiff, : : Judge Koeltl VS. : BY Defendant. : eee ieee een een ene ietemmemnmnenn

ORDER ON PLAINTIEFF’S THIRD MOTION FOR EXTENSION OF TIME WITHIN WHICH IT HAS TO EFFECTUATE SERVICE ON DEFENDANT THIS CAUSE came before the Court upon Plaintiff's Third Motion for Extension of Time Within Which it Has to Serve Defendant with a Summons and Complaint (the “Motion”), and the Court being duly advised in the premises does hereby: ORDER AND ADJUDGE: Plaintiffs Motion is granted. Plaintiff shall have until March 2, 2020, to effectuate service of a summons and Complaint upon Defendant. SO ORDERED this _ day of , 2020.

By: UNITED STATES DISTRICT JUDGE

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK ee ee irate MALIBU MEDIA, LLC, : Case No. 1:19-cv-07189-JGK Plaintiff, : : Judge Koeltl VS. : =D), Defendant. : ee ne ee eter ORDER ON PLAINTIFE’S FOURTH MOTION FOR EXTENSION OF TIME WITHIN WHICH IT HAS TO EFFECTUATE SERVICE ON DEFENDANT THIS CAUSE came before the Court upon Plaintiff's Fourth Motion for Extension of Time Within Which it Has to Serve Defendant with a Summons and Complaint (the “Motion”), and the Court being duly advised in the premises does hereby: ORDER AND ADJUDGE: Plaintiff's Motion is granted. Plaintiff shall have until March 23, 2020, to effectuate service of a summons and Compiaint upon Defendant. SO ORDERED this day of , 2020.

By: UNITED STATES DISTRICT JUDGE

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK

ee ne eee ee ene mee MALIBU MEDIA, LLC, : : Case No. 1:19-cv-07189-JGK Plaintiff, | OR enetr ‘ j $ ie, Paes Gyon SY Sotiris □□□ □□ Vs. : ENR < abey == py ~ * DAU EY y Pie □□ : 4 Lee ie BeOS Defendant. 8 DATy MEP, WER TS sa5e: ee ne ee ee eee ee gene emer seee X “ ce rcentatcnatn 2 £U20 ORDER ON PLAINTIFF’S FOURTH MOTION FOR EXTENSION OF TIME WITHIN WHICH IT HAS TO EFFECTUATE SERVICE ON DEFENDANT THIS CAUSE came before the Court upon Plaintiff's Fourth Motion for Extension of Time Within Which it Has to Serve Defendant with a Summons and Complaint (the “Motion”), and the Court being duly advised in the premises does hereby: ORDER AND ADJUDGE: Plaintiff's Motion is granted. Plaintiff shall have until March 23, 2020, to effectuate service of a summons and Complaint upon Defendant. SO ORDERED this > day of } Wee ‘ Cod , 2020.

By: &. D i nhs orge aniels, U.S.D.J., Part I

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK nee ne eee senna MALIBU MEDIA, LLC, : Case No, £:19-cv-07189-JGE Plaintiff, : VS. :

Defendant. : rat ne ee ieee ene ORDER ON PLAINTIFE’S FIFTH MOTION FOR EXTENSION OF TIME WETHIN WHICH IT HAS TO EFFECTUATE SERVICE ON DEFENDANT THIS CAUSE came before the Court upon Plaintiff's Fifth Motion for Extension of Time Within Which it Has to Serve Defendant with a Summons and Complaint (the “Motion”), and the Court being duly advised in the premises does hereby: ORDER AND ADJUDGE: Plaintiff's Motion is granted, Plaintiff shall have until April . 17, 2020, to effectuate service of a summons and Complaint upon Defendant. SO ORDERED this __ day of , 2020.

By: UNITED STATES DISTRICT JUDGE

KEVIN T. CONWAY, ESQ. ATTORNEY AT LAW LICENSED IN NLY., N.J., CT.

80 Red Schoolhouse Road, Suite 110 c/o DeCotiis, Fitzpatrick, Cole & Giblin, LLC Spring Valley, NY 10977 61 South Paramus Road, Suite 250 Tel: (845) 352-0206 Paramus, NJ 07652 Fax: (845) 352-0481 Tel: (201) 928-1100 March 23, 2020 Application granted.

The Honorable Judge John G. Koeltl SO ORDERED. United States Courthouse 500 Pearl Street New York, NY /s/ John G. Koeltl New York, NY 10007 March 23, 2020 John G. Koeltl, U.S.D J,

Re: 1:19-cv-07189-JGK Plaintiffs Fifth Letter Motion for Extension of Time within Which to Effectuate Service on Defendant Dear Judge Koeltl: Pursuant to Fed. R. Civ. P. 4(m), Plaintiff, Malibu Media, LLC, move for entry of an order extending the time within which Plaintiff has to serve the John Doe Defendant with a Summons and Complaint, and states: L. Plaintiff commenced this action against the internet subscriber assigned IP 98.116.191.111 (“Defendant”) on July 31, 2019, at which time it filed a complaint alleging that Defendant copied and distributed one or more of Plaintiff's copyrighted works, all without Plaintiff’s consent. See CM/ECF 1. Plaintiff asserted a claim for direct copyright infringement, and requested that Defendant delete and permanently remove, and be enjoined from continuing to infringe, Plaintiff's copyrighted works. See id. 2. On September 3, 2019, Plaintiff was granted leave to serve a third-party subpoena on Defendant's ISP, Verizon, to obtain the Defendant’s identifying information [CM/ECF 7].

Plaintiff issued the subpoena on September 8, 2019 and received the ISP’s response on or about November 18, 2019. 3, Upon teccipt of the subscriber’s identifying information, Plamtiff conducted a thorough investigation and determined that a good faith basis exists to name the subscriber as the defendant infringer. 4. Accordingly, Plaintiff filed its Amended Complaint to name the Defendant [CM/ECF 14] and requested that the Clerk issue a summons as to the Defendant. The Court issued the summons on December 16, 2019. 5. On or about December 19, 2019, Plaintiff sent the Summons and Amended Complaint to its process server. The process server has advised that he has been escorted to Defendant’s apartment door by the doorman of the building in an attempt to serve Defendant but, there has been no response at the door. Plaintiff's process server further advised that, during his last attempt to serve the Defendant, he heard sounds from inside the apartment door, but no one answered. 6. Due to the recent restrictions placed by health department, city officials, and our Courts due to COVID-19 virus, our process servers have restricted the amount of attempts they make on a Defendant. Therefore, at this time, Plaintiff's respectfully request this Honorable Court extend the deadlines to effectuate service until at least twenty-five days (25) after March 23, 2020. 7. Therefore, Plaintiff has asked its process server for an affidavit detailing its service efforts, and Plaintiff will be filing its Motion for Alternate Service seeking leave of this Honorable Court to serve Defendant by alternate means subsequent to this Motion for Extension of Time. 8. Pursuant to this Court’s Order on Plaintiff's Third Motion for Extension of Time Within Which It Has to Effectuate Service on John Doe Defendant, [CM/ECF 24], Plaintiff was

required to effectuate service on the Defendant no later than March 23, 2020. 9, Procedurally, Plaintiff respectfully requests that the time within which it has to effectuate service of the summons and Amended Complaint on Defendant be extended until at least twenty (25) days, or until April 17, 2020. The additional time will allow Plaintiff's process server time to observe the Departinent of Health Guidelines and adhere to the quarantine guidelines placed by local officials. 10. ‘This motion is made in good faith and not for the purpose of undue delay. 11. None of the parties will be prejudiced by the granting of this extension. WHEREFORE, Plaintiff respectfully requests that the time within which it has to effectuate service of the summons and Complaint on Defendant be extended until April 17, 2020. A proposed order is attached for the Court’s convenience.

Dated: March 23, 2020 Respectfully submitted, By: /s/ Kevin T. Conway Kevin T. Conway, Esq. (KC-3347) 860 Red Schoolhouse Road, Suite 110 Spring Valley, New York 10977-6201 T: 845-352-0206 F: 845-352-0481 E-mail: [email protected] Attorney for Plaintiff

CERTIFICATE OF SERVICE Thereby certify that on March 23, 2020, I electronically filed the foregoing document with the Clerk of the Court using CM/ECF and that service was perfected on all counsel of record and interested parties through this system. By: /s/ Kevin T. Conway

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK

ee eee ee ne cement nntimmen MALIBU MEDIA, LLC, : : Case No. 1:19-cv-07189-JGK Plaintiff, : VS. : NONE 18), Defendant. : eee ttle ne ee teenie

ORDER ON PLAINTIFE’S FIFTH MOTION FOR EXTENSION OF TIME WITHIN WHICH IT HAS TO EFFECTUATE SERVICE ON DEFENDANT THIS CAUSE came before the Court upon Plaintiff's Fifth Motion for Extension of Time

Within Which it Has to Serve Defendant with a Summons and Complaint (the “Motion”), and

the Court being duly advised in the premises does hereby: ORDER AND ADJUDGE: Plaintiffs Motion is granted. Plaintiff shall have until April 17, 2020, to effectuate service of a summons and Complaint upon Defendant. SO ORDERED this __ day of , 2020.

By: UNITED STATES DISTRICT JUDGE

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK cette eee een ene ene neem MALIBU MEDIA, LLC, : : Case No. 1:19-cv-07189-JGK Plaintiff, Do vs. : NORE □□□ Defendant. : cece ne ee eee eee een ORDER ON PLAINTIFF’S SIXTH MOTION FOR EXTENSION OF TIME WITHIN WHICH IT HAS TO EFFECTUATE SERVICE ON DEFENDANT THIS CAUSE came before the Court upon Plaintiff's Sixth Motion for Extension of Time Within Which it Has to Serve Defendant with a Summons and Complaint (the “Motion”, and the Court being duly advised in the premises does hereby: ORDER AND ADJUDGE: Plaintiff?s Motion is granted. Plaintiff shall have until June 5, 2020, to effectuate service of a summons and Complaint upon Defendant. SO ORDERED this day of , 2020.

By: UNITED STATES DISTRICT JUDGE

.

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK

oe ee ten een eee MALIBU MEDIA, LLC, : Case No. 1:19-cv-07189-JGK Plaintrff, : vs. : Saye □□□ □□ Defendant. : ee en nee ORDER ON PLAINTIFE’S SIXTH MOTION FOR EXTENSION OF TIME WITHIN WHICH IT HAS TO EFFECTUATE SERVICE ON DEFENDANT THIS CAUSE came before the Court upon Plaintiff's Sixth Motion for Extension of Time Within Which it Has to Serve Defendant with a Summons and Complaint (the “Motion”), and the Court being duly advised in the premises does hereby: ORDER AND ADJUDGE: Plaintiffs Motion is granted. Plaintiff shall have until June 5, 2020, to effectuate service of a summons and Complaint upon Defendant. SO ORDERED this 22 day of April , 2020.

By: /s/ John G. Koelil UNITED STATES DISTRICT JUDGE

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK ee eta eee einen MALIBU MEDIA, LLC, □ : Case No. 1:19-cv-07189-JGK Plaintiff, : VS. REECE, : Defendant. ne eee nee ee nei ne enim MOTION FOR ALTERNATE SERVICE ON DEFENDANT YI-TING CHEN NOW COMES the Plaintiff, Malibu Media, LLC, through the undersigned attorneys, who

moves under Federal Rule of Civil Procedure 4(e)(1), and New York Consolidated Laws CVP § 308(5), for an order permitting alternate service of the December 16, 2019 Summons and Amended Complaint on Defendant as follows: 1. This Court should permit alternate service of the summons and Amended Complaint on Defendant alee. because Plaintiff has tried unsuccessfully to serve personally several times, thus making personal service impracticable. 2. This Court.should permit alternate service of the summons and complaint on Defendant ees. because the proposed alternate service is reasonably calculated to give notice and an opportunity to be heard in this action, thus according with the basic procedural due process requirements. 3. As shown in the attached sworn affidavits of process server Frederick Pringle and Euclide Decastro, Mr. Pringle attempted to serve Defendant two times at fi last known address, (the “Last Known Address”).

See Affidavit of Attempted Service sworn to by Frederick Pringle, attached hereto as Exhibit “A.” 4, During each service attempt, there was no answer at the residence, Id. On January 15, 2020, the doorman at the building attempted to contact Defendant but there was no answer Td. On January 22, 2020, Mr. Pringle was escorted by the doorman to Defendant’s apartment. Mr. Pringle knocked on the door but here was no answer Id. 5. On January 23, 2020 Plaintiff’s process server, Mr. Euclide Decastro attempted to

serve Defendant. Mr. Decastro noted that he heard sounds inside the apartment, but no one answered. 6. Plaintiff, via the process servers, have tried to serve Defendant and the process server has concluded that he failed to serve Defendant at the Last Known Address. 7. As aresult, personal service ts impracticable. 8. However, the proposed alternate service requested in paragraph B below is reasonably calculated to notify the Defendant of the action and give an opportunity to be heard. 9. Due to Plaintiff’s diligence in attempting to serve despite Defendant’s possible avoidance of service, Plaintiff also requests twenty-one days from the date of an Order on this Motion to serve Defendant eee) by alternate service. 10. A memorandum of law in support of this motion, and proposed order are filed contemporaneously herewith. THEREFORE, Plaintiff respectfully requests this Court to: A. Grant this motion. B. Permit Plaintiff twenty-one (21) days to serve Defendant by alternate service, including posting at jill Last Known Address and sending a summons and copy

of the Amended Complaint by registered or certified mail, return receipt requested, and delivery restricted to the addressee at the Last Known Address.

Dated: May 15, 2020 Respectfully submitted, By: /s/ Kevin 7, Conway Kevin T. Conway, Esq. -KC-3347 80 Red Schoolhouse Road, Suite 110 Spring Valley, NY. 10977 T: 845-352-0206 F: 845-352-0481 E-mail: [email protected] Attorney for Plaintiff

CERTIFICATE OF SERVICE [hereby certify that on May 15, 2020, I electronically filed the foregoing document with the Clerk of the Court using CM/ECF and that service was perfected on all counsel of record and interested parties through this system. By: /s/ Kevin T. Conway Kevin T. Conway, Esq.

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK MALIBU MEDIA, LLC, - Civil Action No. 1:19-ev-07189-JGK Plaintiff, AFFIDAVIT OF v. ATTEMPTED SERVICE ial BY NON □□□ Defendant. STATE OF NEW YORK] SS, COUNTY OF NEW YORK)

FREDERICK PRINGLE, being duly swom, deposes and says that he is over the age of eighteen years, is employed by the attorney service, D.L.S., Inc., and is not a party to this action. That on the 15" day of January, 2020, at approximately 1:43 pm, deponent attempted to serve a

_|| true copy ofthe SUMMONS IN A CIVIL ACTION, AMENDED COMPLAINT ACTION FORDAMAGES FOR PROPERTY RIGHTS INFRINGEMENT, ORDER ON PLAINTIFF’S SECOND MOTION TO ADJOURN INITIAL PRETRIAL CONFERENCE AND EXTEND THE DEADLINE TO FILE A JOINT “| DISCOVERY/ CASE MANAGEMENT PLAN, AND NOTICE OF FILING RULE 7.1 DISCLOSURE ~ = = STATEMENT upon Ruse eae S8)at Sia) KORE =D) but the doorman called up and there was no answer to the apartment. That on the 22™ day of January, 2020, at approximately 10:00 am, deponent attempted to serve a true copy of the SUMMONS IN A CIVIL ACTION, AMENDED COMPLAINT— ACTION FOR DAMAGES = FOR PROPERTY RIGHTS INFRINGEMENT, ORDER ON PLAINTIFF'S SECOND MOTION TO ADJOURN INITIAL PRETRIAL CONFERENCE AND EXTEND THE DEADLINE TO FILE A JOINT DISCOVERY/CASE MANAGEMENT PLAN, AND NOTICE OF FILING RULE 7.1 DISCLOSURE |

10043

STATEMENT npon IRSEOSEM ai Tey NOR □□□ , but deponent was escorted by security to the apartment and there was no answer to the apartment door.

FREDERICK PRINGLE, =f Sworn to before me this □ 14" day of February,2020

pL UBC. THAN HIPPS □□□ TARY PUBLIC, STATE OF NEW YORK Lk NO. O1RI6 100718 OUALIFIED IM NEW YORK COUNTY COMMISSION EXPIRES MAY 17, 2620

10013

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK MALIBU MEDIA, LLC, Civil Action No, 1:19-cv-07189-JGK Plaintiff, AFFIDAVIT OF v. ATTEMPTED SERVICE

Papeete □□□

STATE OF NEW YORK J 5.8, COUNTY OF NEW YORK)

EUCLIDE DECASTRO, being duly sworn, deposes and says that he is over the age of eighteen years, is employed by the attorney service, D.L.S., Inc., and is not a party to this action, That on the 23" day of January, 2020, at approximately 6:30 pm, deponent attempted to serve a true copy of the SUMMONS IN A CIVIL ACTION, AMENDED COMPLAINT— ACTION FOR DAMAGES FOR PROPERTY

| RIGHTS INFRINGEMENT, ORDER_ON PLAINTIFF'S SECOND MOTION TO ADJOURN.INITIAL PRETRIAL... -. | - CONFERENCE AND EXTEND THE DEADLINE TO FILE A JOINT DISCOVERY /CASE MANAGEMENT PLAN, AND NOTICE OF FILING RULE 7,1 DISCLOSURE STATEMENT upon eed) py SIO) but deponent heard sounds inside, but no one came to the door, □

C . C [ Lad 2 EUCLIDE DECASTRO, #2079464 Sworn to before me this 14" day of February, 2020

( TAR IC

JOMATHAN RIPPS NOTARY PUNLIC, STATE OF NEW YORME Quant 108718 JALIFIED iM NEW YORK COUNTY 10013 COMMISSION EXPIRES MAY 47, 2020

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK tee ent K MALIBU MEDIA, LLC, : Case No. 1:19-cv-07189-JGK Plaintiff, : VS. REeED). Defendant. tee et enn ORDER ON PLAINTIFFE’S MOTION FOR ALTERNATE SERVICE ON DEFENDANT RG THIS CAUSE came before the Court upon Plaintiff's Motion for Alternate Service on Defendant the (“Motion”), pursuant to Fed. R. Civ. P. 4(e)(1), and New York Consolidated Laws CVP § 308(5). This is a case for copyright infringement arising under United States Copyright Act of 1976, as amended,

et seq. The Court being duly advised in the premises does hereby: ORDER AND ADJUDGE: 1. Plaintiff's Motion is granted. 2. Plaintiff is permitted to serve Defendant eiSs) by alternate service, including posting a summons and copy of the Amended Complaint at Jj Last Known Address and sending a copy by registered or certified mail, return receipt requested, and delivery restricted to the addressee at the Last Known Address, 3. Plaintiff shall have twenty-one (21) days from the date of this Order to serve Defendant by alternate service.

4. Defendant shall have twenty-one (21) days from acknowledgement of the receipt of

mail to file an Answer or other responsive pleading with this Court. 5. Ifthe Defendant fails to do so, he will be subject to Default. SO ORDERED this___ day of , 2020.

By UNITED STATES DISTRICT JUDGE

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK

eee eee nnemennnnn nena MALIBU MEDIA, LLC, : : Case No. 1:19-cv-07189-JGK Plaintiff, : VS. : BY Defendant. : te ee cee ene eee mememnn BRIEF IN SUPPORT OF MOTION FOR ALTERNATE SERVICE ON DEFENDANT YI-TING CHEN Plaintiff hereby respectfully requests that this court should permit alternate service of the

summons and Amended Complaint on Defendant NSRNCHESB) because personal service is impracticable, and the proposed alternate service is reasonably calculated to give Defendant notice and an opportunity to be heard in this action, thus according with the basic due process requirements. With irrelevant exceptions, such as minors or incompetents, "service upon an individual...may be effected in any judicial district of the United States: ( 1) pursuant to the law of the state in which the judicial district is located, or in which service is effected, for the service of a summons upon the defendant in an action brought in the Courts of general jurisdiction of the State ... Fed. R. Civ. P. 4(e)(1). The applicable state and state law is New York, and the New York Consolidated Laws define New York law regarding service of a summons and complaint. Under these rules, where personal service is impracticable, the court has discretion to permit alternate service:

Personal service upon a natural person shall be made by any of the following methods:... (5) in such manner as the court, upon motion without notice, directs, if service is impracticable under paragraphs one, two and four of this section. New York Consolidated Laws CVP § 308(5). The affidavits of process servers, Frederick Pringle and Euclide Decastro, are attached as Exhibit “A” to the Motion for Alternate Service. These affidavits detail the attempts that Mr. Pringle and Mr. Decastro made to serve Defendant =e) NeagS and demonstrates that Defendant NOag 8) is avoiding service. In this matter, personal service is impracticable, and alternate service is essential. In this situation, the applicable New York Consolidated Laws permit Plaintiff's proposed alternate service. Plaintiffs multiple attempts to serve Defendant SISDINGHESB personally at Last Known Address have been unsuccessful. However, Plaintiff has concluded that Defendant resides at the Last Known Address and is avoiding service. Plaintiff requests that the Court allow service to be effected under New York Consolidated Laws CVP § 308(4): [Where service under paragraphs one and two cannot be made with due diligence, by affixing the summons to the door of either the ... dwelling place or usual place of abode within the state of the person to be served and by ... mailing the summons to such person at his or her last known residence ... in an envelope bearing the legend ‘personal and confidential’ and not indicating on the outside thereof, by return address or otherwise, that the communication is from an attorney or concerns an action against the person to be served, such affixing and mailing to be effected within twenty days of each other[.] Accordingly, Plaintiffs proposed alternate service is reasonably calculated to notify Defendant SINUS of this action and give him an opportunity to be heard. Thus, an alternate service order is justified and necessary. Due to Plaintiff’s diligence in attempting to serve, Plaintiff also requests twenty-one days from the date of an Order on this Motion to serve Defendant by alternate service. A proposed order is filed contemporaneously herewith.

CONCLUSION THEREFORE, PLAINTIFF respectfully requests this Court to: A. Grant this motion. B. Permit Plaintiff twenty-one days to serve Defendant NAB NCUA) by alternate service including posting at fil Last Known Address and sending a summons and copy of the Amended Complaint by registered or certified mail, return receipt requested, and delivery restricted to the addressee at the Last Known Address.

Dated: May 15, 2020 Respectfully submitted, By:_/s/ Kevin T. Conway Kevin T. Conway, Esq. (KC-3347) 80 Red Schoolhouse Road, Suite 110 Spring Valley, NY. 10977 T: 845-352-0206 F: 845-352-0481 E-mail: [email protected] Attorney for Plaintiff

CERTIFICATE OF SERVICE Thereby certify that on May 15, 2020, I electronically filed the foregoing document with the Clerk of the Court using CM/ECF and that service was perfected on all counsel of record and interested parties through this system. By: /s/ Kevin T, Conway Kevin T. Conway, Esq.

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK MALIBU MEDIA, LLC, Plaintiff, 19cv7189 (JGK) - against - ORDER □ Slay Xeus=i5) —

Defendant. JOHN G. KOELTL, District Judge: The time to file a Rule 26(f£) report is extended to July 17, 2020. The initial conference is adjourned to July 24, 2020 at 10:00 AM. The request to permit alternative service of the summons and amended complaint is denied without prejudice. Three efforts to serve by the process server all within a single ten- day period are insufficient at this time to demonstrate that personal service is impracticable. See Silverman v. Sito Marketing LLC, No. 14-ev-3932,

, at *5 (H.D.N.Y. Mar. 9, 2015) (finding that impracticability to effect service by traditional methods had not been established because, among other reasons, the process server had made “limited efforts”). SOQ ORDERED. Dated: New York, New York May 18, 2020 /s/ John G. Koeltl John G, Koeltl United States District Judge

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK. MALIBU MEDIA, LLC, Civil Action No. 1:19-cv-07189-JGK Plaintiffs), AFFIDAVIT OF SERVICE v. 1B) Defendant{s}. STATE GF NEW YORK ] 8.8. COUNTY OF NEW YORK)

FREDERICK PRINGLE, being duly sworn, deposes and says that he is over eighteen years of age, is employed by the attorney service, DLS, INC., and is not a party to this action. That on the 25° day of June, 2020, at approximately the time of 12:40 pm, deponent served a true copy of the SUMMONS IN A CIVIL ACTION, AMENDED COMPLAINT— ACTION FOR DAMAGES FOR PROPERTY RIGHTS | INFRINGEMENT, ORDER ON PLAINTIFF'S SECOND MOTION TO ADJOURN INITIAL PRETRIAL CONFERENCE AND EXTEND THE DEADLINE TO FILE A JOINT DISCOVERY/CASE MANAGEMENT PLAN, AND NOTICE OF FILING RULE 7.1 DISCLOSURE STATEMENT upon (RSSZN@QNS3) at pao) _ by personally delivering and leaving the same with ISPIN@UISB)ot that address. At the time of service, deponent: asked whether he is in active military service for the United States of America or for the State in any capacity whatever or dependent upon a person in active military service and received a negative reply. oo... _YMTING. CHEN is an ERASE) approximately ili years of age, stands approximately liifeet finches tall, weighs. a fi pounds with hair and jilidiiliileyes,

FREDERICK ne0G789E Sworn to beforemé this / 28" day of Futhe, 2020

NOTARY BUStIC-——— fhe. glhnenne te, 510 JONATHAN RIPPS York, NY 1004 NOTARY PUBLIC, STATE OF NEW YORK com Registration No. ORIGIG97IB Qualified in New York County Bia Maasecidetan Diretenn hdescs 19 Shee

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK tent ee eee ne □□□ MALIBU MEDIA, LLC, : Case No. 1:19-cv-07189-JGK Plaintiff, vs. Nena). Defendant. een naenmennnnanannne K ORDER ON PLAINTIFE’S SIXTH MOTION TO ADJOURN INITIAL PRETRIAL CONFERENCE AND EXTEND THE DEADLINE TO FILE A JOINT DISCOVERY/ CASE MANAGEMENT PLAN THIS CAUSE came before the Court upon Plaintiff's Fifth Motion to Extend the Deadline to File a Joint Discovery/Case Management Plan and to Adjourn Initial Pretrial Conference (the “Motion”), and the Court being duly advised in the premises does hereby: ORDERED and ADJUDGED: Plaintiff's Motion is GRANTED. The Initial Pretrial Scheduling Conference on the above matter is now set for .

DONE AND ORDERED this ___ day of ,» 2020.

By: UNITED STATES DISTRICT JUDGE

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK antennae mene ee ee een enn MALIBU MEDIA, LLC, : Case No. 1:19-cv-07189-JGK Plaintiff, : vs. : CLERK’S CERTIFICATE : OF DEFAULT NGAN 4B,

Defendant. : mene eee ee ein ene neem K L RUBY J. KRACK, Clerk of the United States District Court for the Southern District of New York, do hereby certify that this action was commenced on July 31, 2019, with the filing of a summons and complaint, that an Amended Complaint was filed on December 15, 2019, a copy of the summons and Amended Complaint were duly served upon Defendant, ONE via individual service on June 25", 2020, and proof of service was therefore filed on July 8th, 2020, Doe. #35. I further certify that the docket entries indicate that the defendant has not filed an answer or otherwise moved with respect to the complaint herein. The default of the defendant is hereby noted. Dated: New York, New York

, 2020. RUBY J. KRAJICK Clerk of Court

By, Deputy Clerk

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK

en en ene nett MALIBU MEDIA, LLC, : Case No. 1:19-cv-07189-JGK Plaintiff, :

REECE). : Defendant. ere ttn ee ee ee ene, DECLARATION IN SUPPORT OF REQUEST FOR CLERK’S CERTIFICATE OF DEFAULT

I, Kevin T. Conway, declare under penalty of perjury that the following facts are true and correct to the best of my information and belief: 1. 1 am the attorney for the Plaintiff in this action. 2. A Complaint was filed herein on July 31, 2019 [CM/ECF 1]. 3. This is a case for copyright infringement arising under United States Copyright Act of 1976, as amended,

et seq. (the “Copyright Act”). 4, This Court has subject matter jurisdiction over this action pursuant to

(federal question); and

(patents, copyrights, trademarks and unfair competition). 5. Plaintiff used proven IP address geolocation technology which has consistently worked in similar cases to ensure that Defendant’s acts of copyright infringement occurred using an Internet Protocol address (“IP address”) traced to a physical address located within this District, and therefore this Court has personal jurisdiction over defendant because (i) Defendant committed

the tortious conduct in this State, (ii) Defendant resides in this State, and/or (iii) Defendant has engaged in substantial and not isolated business activity in this State 6, Indeed, Defendant resides in the State of New York at Sl=py Yous ed DYNO wt D) _ As such, this Court has personal jurisdiction. 7. On December 15, 2019, Plaintiff filed its Amended Complaint [CM/ECF 14}. 8. Service of summons and Amended Complaint were obtained as follows: Defendant Date of Service, Type of Service Ria BY Baie) June 25, 2020, Individual Service

9, According to New York Civil Practice Law and Rules §308, service of process on

an individual is accomplished by delivering the summons within the state to the person to be

served.

10. The Affidavit of Service details that the process server served the Defendant at his

usual place of abode by delivering a copy of the summons and amended complaint by the

methods described above. [CM/ECF 35]. Thus, service is appropriate.

11. | More than twenty-one (21) days have elapsed since the Defendant, Riser NeuESp in this action was served, and the Defendant SBIN@MIS®) has failed to plead or otherwise defend this action as provided by the Federal Rules of Civil Procedure. 12. Defendant, =JN@UES®) on information and belief, is not a minor, incompetent, or on active duty in the U.S. Military.

DECLARATION PURSUANT TO

, I hereby declare under penalty of perjury under the laws of the United States of America that the foregoing is true and correct. Executed on this 24" day of July, 2020.

By: Kevin T. Gonway, Esq.

[USC SDNY DOCUMESMT 1 Ww ALT □ FTL eT UNITED STATES DISTRICT COURFEECTRONICALEY □□□□□ | SOUTHERN DISTRICT OF NEW ¥ CH: □□ □□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□ ATE FILED: 2080 MALIBU MEDIA, LLC, Ee : Case No. 1:19-cv-07189-JOK Plaintiff, : VS. : CLERK’S CERTIFICATE : OF DEFAULT aie OnE Ee. :

Defendant. : eeeryeeegen sicea nine deere ee neem teens ene XL I, RUBY J. KRAJICK, Clerk of the United States District Court for the Southern District - of New York, do hereby certify that this action was commenced on July 31, 2019, with the filing ofa summons and complaint, that an Amended Complaint was filed on December 15, 2019, a copy of the summons and Amended Complaint were duly served upon Defendant, □□□ Neuse) via individual service on June 25", 2020, and proof of service was therefore filed on July 8th, 2020, Doe. #35, 1 further certify that the docket entries indicate that the defendant has not filed an answer or otherwise moved with respect to the complaint herein. The default of the defendant is hereby noted. Dated: New York, New York Siu J 1 2020. RUBY J. KRAJICK Clerk of Court

Deputy Clerk

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK ee ne tne einen MALIBU MEDIA, LLC, : Case No. 1:19-cv-07189-JGK Plaintiff, : Vs. RECS, :

Defendant. ee ee ememen nen MOTION FOR ENTRY OF FINAL DEFAULT JUDGMENT AGAINST DEFENDANT JisiBy Negy=i8)

Plaintiff, Malibu Media, LLC (‘Plaintiff’), by and through undersigned counsel, and

pursuant to Fed. R. Civ. P. 55, and Local Rule 55.2, hereby files its Motion for Entry of Final Default Judgment (“Motion”) against Defendant, (“Defendant”), and in support thereof, states: 1. This is a case for copyright infringement arising under United States Copyright Act of 1976, as amended,

et seq. (the “Copyright Act”). 2. This Court has subject matter jurisdiction over this action pursuant to

(federal question); and

(patents, copyrights, trademarks and unfair competition). 3. Plaintiff used proven IP address geolocation technology which has consistently worked in similar cases to ensure that Defendant’s acts of copyright infringement occurred using an Internet Protocol address (“IP address”) traced to a physical address located within this District, and therefore this Court has personal jurisdiction over defendant because (i) Defendant

committed the tortious conduct in this State, (ii) Defendant resides in this State, and/or (iii) Defendant has engaged in substantial and not isolated business activity in this State. 4. Indeed, Defendant resides in the as 5. On July 31, 2019, Plaintiff filed its Complaint in this action [CM/ECF 1]. 6. On December 15, 2019, Plaintiff filed its Amended Complaint [CM/ECF 14]. 7. Service of summons and Amended Complaint was obtained as follows: Defendant Date of Service, Type of Service June 25, 2020, Individual Service 8. Pursuant to New York Civil Practice Law and Rules $308, personal service on a natural person shall be made by delivering the summons within the state to the person to be served. 9. The Affidavit of Service [CM/ECF 35] describes personal service on the Defendant. Thus, service is appropriate. 10. Defendant has failed to plead or otherwise defend against Plaintiff's Amended Complaint. 11. A Clerk’s Certificate of Default was issued as to Defendant RSBRNeniss) on July 27, 2020 [CM/ECF 39]. 12. Defendant is not an infant, an incompetent person or in active military service. See Decl. of Kevin T. Conway, Esq. 13. This Motion is based on the allegations in Plaintiff's Amended Complaint. Defendant has admitted all of the facts alleged therein by failing to plead or otherwise respond to the Amended Complaint. See, e.g., Malibu Media, LLC v. Ofiesh, No. 1:16-CV-202 (FIS/DEP),

, at *3 (N.D.N.Y. June 19, 2017); Greyhound Exhibitgroup, Inc. v.

E.L.U.L. Realty Corp.,

(2d Cir. 1992) (citation omitted); see also Granite Music Corp. v. Ctr. St. Smoke House, Inc,

(W.D.N.Y. 2011) (citation omitted). 14. This Motion is further based on the facts attested to in the Declaration of Kevin T. Conway, Esq., and the record of the proceedings and papers on file herein. These materials are sufficient to justify the requested relief. WHEREFORE, Plaintiff, Malibu Media, LLC, respectfully requests entry of a final judgment as a result of default in favor of Plaintiff and against Defendant, NSBINGMESR) □□ the form of the Proposed Final Default Judgment and Permanent Injunction attached hereto, and for such other and further relief this Court deems just and proper. A proposed Order to Show Cause Why Court Should Not Enter Default Judgment Against Defendant =IaRReaTS) is attached to this instant filing.

Dated: July 30, 2020 Respectfully Submitted, By: /s/ Kevin T. Conway Kevin T. Conway (KC-3347) 80 Red Schoolhouse Road, Suite 110 Spring Valley, NY 10977 T: (845) 352-0206 F: (845) 352-0481 Email: [email protected] Attorneys for Plaintiff

CERTIFICATE OF SERVICE L hereby certify that on July 30, 2020, I electronically filed the foregoing document with

the Clerk of the Court and all parties using the CM/ECF system. Participants in the case who are registered CM/ECF users will be served by the CM/ECF system. I further certify that some of the participants in the case are not CM/ECF users. I have mailed the foregoing document via U.S. Mail to the persons set forth in the Service List below.

By: /s/ Kevin T. Conway Kevin T. Conway, Esq.

Service List By NOas 8)

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK

fe eK MALIBU MEDIA, LLC, : Case No. 1:19-cv-07189-JGK. Plaintiff, : VS. : By NORE iB

Defendant. ee PROPOSED] FINAL DEFAULT JUDGMENT AND PERMANENT INJUNCTION AGAINST Nou stp)

THIS CAUSE is before the Court on Plaintiff's Motion for Final Default Judgment Against NeagSe) (“Motion”). Having considered the Motion, being otherwise duly advised in the premises, and good cause appearing, the Court hereby FINDS: 1. The address of Plaintiff is: 30700 Russell Ranch Road, Suite 250, Westlake Village, CA, 91362 The name and address of Defendant is: a ONS m1)

2. This Court has jurisdiction over the subject matter of this case and the parties. 3. Venue is proper in this District. 4, The Amended Complaint states claims for direct copyright infrimgement, in

violation of

, and contributory copyright infringement upon which relief may be granted against Defendant. 5, Defendant has failed to plead or otherwise defend against Plaintiff's Amended Complaint in this action. 6. A Certificate of Default was issued as to Defendant on July 27, 2020. 7. Defendant is not an infant, incompetent person or mn active military service. 8. By reason of default, Defendant has admitted the truth of the allegations in Plaintiff's Amended Complaint. 9. Under Count I of the Amended Complaint, Defendant is hereby found liable to Plaintiff for willfully committing direct copyright infringement. 10. Defendant will continue to cause Plaintiff irreparable injury. Specifically, there is an existing threat of continued violations of Plaintiff's exclusive rights to reproduce, distribute, perform and display the sixteen (16) copyrighted works listed on Exhibit A attached hereto (the “Works”) through Defendant’s use of the BitTorrent protocol to upload and download the Works between and among peer users without authorization from Plaintiff. 11. There will be no injury to Defendant caused by entry of a permanent injunction requiring Defendant to cease infringing Plaintiff's Works. 12. Entry of a permanent injunction against Defendant “will not disserve the public interest; in fact, to the contrary, it will protect copyrighted material and encourage compliance with the Copyright Act.” Malibu Media, LLC v. Ofiesh, No. 1:16-CV-202 (FIS/DEP),

, at *8 (N.D.N.Y. June 19, 2017) 13. In accordance with Rule 65(d), Federal Rules of Civil Procedure, this Default Judgment shall be binding upon Defendant and all other persons in active concert or participation

with Defendant who receives actual notice of this Default Judgment. 14.‘ Plaintiff has submitted a Declaration demonstrating that Plaintiff expended a total of $594.00 in costs, which amount this Court finds reasonable. Based on the foregoing findings, it is: ORDERED AND ADJUDGED that Defendant ERIXQUES : a) shall pay to Plaintiff the sum of $12,000.00 in statutory damages, as authorized under

(c)(1), and $594.00 costs, as authorized under

, making a total of $12,59400, for which let execution issue forthwith; b) shall pay to Plaintiff post-judgment interest at the current legal rate allowed and accruing under

as of the date of this Default Judgment until the date of its satisfaction; c) be and hereby is enjoined from directly, contributorily or indirectly infringing Plaintiffs rights under federal or state law in the Works, including, without limitation, by using the internet, BitTorrent or any other online media distribution system to reproduce (¢.g., download) or distribute the Works, or to make the Works available for distribution to the public, except pursuant to a lawful license or with the express authority or Plaintiff, d) Be and is hereby ordered to destroy all copies of Plaintiff's works that the Defendant ji a has downloaded onto any computer hard drive or server without Plaintiff's authorization, and shall destroy all copies of the Works transferred onto any physical

medium or device in Defendant SSaegt=ss) possession, custody, or control; and, e) The Court shall retain jurisdiction over this action for six months or until the judgment is satisfied to entertain such further proceedings supplementary and to enter such further orders as may be necessary or appropriate to implement and enforce the provisions of this

Default Judgment. DONE AND ORDERED this day of, , 2020.

By: UNITED STATES DISTRICT JUDGE

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK etter nee en en eee tiem MALIBU MEDIA, LLC, : : Case No. 1:19-cv-07189-JGK Plaintiff, : VS. : =D) 1B) Defendant. : ne ee een ene nett K ORDER TO SHOW CAUSE, WHY COURT SHOULD NOT ENTER DEFAULT JUDGMENT AGAINST DEFENDANT [SSL NOMEELS) The Defendant shall respond in writing to this Order to Show Cause for a default judgment

by Ifthe Defendant fails to respond by that date, judgment may be entered against them

and the Defendant will have no trial. The Plaintiff may reply by . The Plaintiff shall

serve a copy of this Order to Show Cause by and shall file proof of service by

No personal appearances are required in connection with this Order to Show Cause.

DATED:

UNITED STATES DISTRICT JUDGE JOHN G. KOELTL

UNETED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORE

i een eterna eee ee essen MALIBU MEDIA, LLC, : : Case No. 1:19-cv-07189-JGK Plaintiff, : VS. : SoD) aD),

Defendant. : ee ee tn enn, MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR ENTRY OF FINAL DEFAULT JUDGMENT AGAINST DEFENDANT aie Nes=i3) t= 3)

Table of Contents

II. PROCEDURAL BACKGROUND □□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□ O IIL DEFAULT JUDGMENT SHOULD BE ENTERED AGAINST □□□□□□□□□□□□□□□□□□□□□□ 6 A. This Court has Subject Matter and Personal Jurisdiction 00.0... eeteeeeceees 6 B. Entry of Default Judgment is Factually and Legally Appropriate ............::ccnees 6 1. Defendant’s Default Concedes the Truth of the Facts Alleged in the Amended □□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□ O 2. Plaintiff's Allegations Are Factually and Legally Sufficient to Support its Claims of Copyright Infringement 00.0... □□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□ a. Plaintiff Has Demonstrated Ownership of a Valid Copyright... 7 b. Plaintiff Has Demonstrated Direct Copyright Infringement by Defendant...... 7 C. Statutory Damages Should be Awarded to □□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□ 12 D. Injunctive Relief Should be Awarded to Plaintiff... cece L4 E. Costs of Suit Should be Awarded to Plaintiff... □□□□□□□□□□□□□□□□□□□□□□□□□□□ LF

TABLE OF AUTHORITIES Cases

A&N Music Corp. v. Venezia,

(E.D. Pa. 1990) □□□□□□□□□□□□□□□□□□□□□□□ 18 Achte/Neunte Boll King Beteiligungs GMBH & Co KG v. Palmer,

(M.D. Fla. Arista Records, Inc. v. Becker Enterprises, Inc.,

(8.D.FL. 2003) ..... 9 Axact (PVT), Lid. v. Student Network Resources, Inc,,

(D.N.J, 2008) .... 17,18 BMG Music v. Gonzalez,

(7! Cir. 2005) □□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□ □□ Boost Worldwide, Inc. v. Summit City Check Cashing, No. 5:11CV2466, 2012 U.S. Dist, LEXIS 39770 (N.D. Olio Feb. 22, 2012) □□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□ Christ Ctr. of Divine Philosophy, Inc. v. Elam, No. CTV-16-65-D,

(W.D. Okla. Feb. 10, 2017) □□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□ □ Columbia Pictures Television, Inc., v. Krypton Broad. of Birmingham, Inc.,

cg Cir. 2001), cert. denied,

,

(2002)... eecceeeeeemeeeeenees £2 D.C. Comics Inc. v. Mini Gift Shop,

(2d Cir, 1990) ieee □□□□□□□□□□□□□□□□□□□□□□□□□□□□ 14 Donkeyball Movie, LLC y. Does 1-171,

(D.D.C. 2011) cece eects 12 DSC Comms. Corp. v. DGI Tech., Inc.,

(Sth Cit, 1996) ccc: □□ eBay, Inc. v. MercExchange, LLC,

, 126 8.Ct. 1837,

(2006)....... 15 Feist Publications, Inc. v. Rural Tel. Serv. Co., Inc.,

, 111 8. Ct. 1282, 113 L. Ed. Fustock v. ContiCommodity Servs., Inc.,

(2d Cir. 1989)... cscs L4 Getaped.com, Inc. v Cangemi,

(S.D.NLY. 2002)... 14 Granite Music Corp. v. Cir. St. Smoke House, Inc.,

(W.D.NLY, 2011).........7 Greyhound Exhibitgroup, Inc. v. E.L.U.L, Realty Corp.,

(2d Cir, 1992) ...........7, □□ John Wiley & Son, Inc. v. Williams,

(S.D.N.Y. Oct. 26, 2012) □□□ 12 Liberty Media Holdings, Inc. v. Quynn Alan Phillips, Everette v. Astrue, No. 3:11-cv-00029- JAH-JMA, ECF No. 12 (S.D. Cal. Sune 6, 2011) eccentric LA Malibu Media, LLC v. Ofiesh, No. 1:16-CV-202 (FJS/DEP),

(N.D.N.Y. June 19, 2017) □□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□ Os Fy 16, 17 McGraw-Hill Glob. Educ. Holdings, LLC v. Khan,

(S.D.N.Y. June 22, 2018) □□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□ LT Medias & Co., Inc. v. Ty, Inc.,

(D. Colo. 2000) cieeeeeee □□ Microsoft Corp. v. Big Boy Distribution LLC, 589 F Supp.2d 1308 (S.D. Fla. 2008)... 16 Ortiz-Gonzalez v. Fonovisa,

(15 Cir. 2002)... □□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□ LA Rural Telephone Service Co., Inc. v. Feist Pubs., Inc.,

(D. Kan. 1992).......... 18 Sony BMG Music Entm’t v. Tenenbaum,

(1* Cir, 2011)... 12 Stevens v. Aeonian Press, Inc.,

(S.D.N.Y. Oct. 22, 2002).......... 18 Virgin Records America, Inc, v. Bagan,

(D.N.J. 2009) 0. etecsseeeeeereteee 12 Warner Bros. Records, Inc., v. Novak,

(D.N.J. 2007) voces LF

Statutes

Fed. Ry Civ. P. 55 □□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□ New York Civil Practice Law and Rules §308 □□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□ senescence: O

Other Sources Digital Theft Deterrence Act of 1999, H.R. Rep. No, 106-216, at 3 (1999) escent 13 “Music, How, When and Where You Want It”, International Federation for Phonographic Princeton study - 99% of BitTorrent files pirated” by George Ou, originally posted January 29, 2010 on http://www.digitalsociety.org/20 10/01 /princeton-study-99-of-bittorrent-files-pirated/ Testimony of Scott Turow President of the Authors Guild Before the Senate Judiciary Committee at http:/Avww.judiciary.senate. gov/pdf/11-2-16%20Turow%20Testimony.pdf.... 10

Plaintiff, Malibu Media, LLC (“Plaintiff”), by and through undersigned counsel, and

pursuant to Fed.R.Civ.P. 55, hereby files its Memorandum of Points and Authorities in Support of its Motion for Final Default Judgment (“Motion”) filed contemporaneously herewith against Defendant, MEpAkeiSs) (“Defendant”), and in support thereof, states: I. INTRODUCTION Plaintiff seeks entry of default judgment against Defendant for failure to plead or otherwise defend against Plaintiffs Amended Complaint for direct copyright infringement of Plaintiff's motion picture works listed on Exhibit A attached hereto (the “Works”) using the internet and the BitTorrent protocol. Defendant, by reason of default, is taken to have conceded the truth of the factual allegations in the Amended Complaint. Plaintiff, therefore, now seeks entry of default judgment by the Court awarding (a) statutory damages under the Copyright Act, (b) the costs incurred by Plaintiff in this action, and (c) injunctive relief to prevent further infringement by Defendant. il. PROCEDURAL BACKGROUND 1. On July 31, 2019, Plaintiff filed the Complaint in this action. [CM/ECE 1]. 2. On August 7, 2019, Plaintiff filed its Letter Motion for Leave to file Motion for Leave to Serve Third Party Subpoenas Prior to Rule 26(f) Conference requesting the Court’s authorization to serve discovery on the Doe Defendant’s Internet Service Provider (“ISP”) in order

to learn the Defendant’s true identity [CM/ECF 6]. The Court granted this motion on September 3, 2019 [CM/ECF 7]. 3. Pursuant to the issuance of the third party subpoena, Defendant’s ISP disclosed Defendant’s true identity to Plaintiff. See Decl. of Kevin T. Conway, Esq. attached hereto as Exhibit “B.”

4, On December 15, 2019, Plaintiff filed its Amended Complaint in this action. [CM/ECF 14]. 5. Plaintiff served Defendant with a Summons and Amended Complaint on June 25, 2020. See Affidavit of Service [CM/ECF 35]. 6. Defendant failed to plead or otherwise defend against Plaintiff's Amended Complaint. 7. A Clerk’s Certificate of Default was issued as to Defendant Negi=s) on July 27, 2020 [CM/ECF 39]. 8. Defendant is not a minor, incompetent person or in active military service. See Decl. of Kevin T. Conway, Esq. TI. DEFAULT JUDGMENT SHOULD BE ENTERED AGAINST DEFENDANT

A. This Court has Subject Matter and Personal Jurisdiction This is a case for copyright infringement arising under United States Copyright Act of

1976, as amended,

et seq. (the “Copyright Act”). This Court has subject matter jurisdiction over this action pursuant to

(federal question); and 28 U.S.C, § 1338

(patents, copyrights, trademarks and unfair competition). 8. This Court has personal jurisdiction over the Defendant, a New York resident, who

was properly served via individual service. New York Civil Practice Law and Rules §308 allow

for personal service by delivering the summons within the state to the person to be served. In this

case, all requirements for personal service have been met [CM/ECF 35]. B. Entry of Default Judgment is Factually and Legally Appropriate 1. Defendant’s Default Concedes the Truth of the Facts Alleged in the Amended Complaint.

By defaulting, Defendant admitted the truth of the allegations of the Amended Complaint. See, e.g., Malibu Media, LLC v. Ofiesh, No. 1:16-CV-202 (FJS/DEP),

, at *3 (N.D.N.Y. June 19, 2017); Greyhound Exhibitgroup, Inc. v. E.L.U.L. Realty Corp.,

(2d Cir. 1992) (citation omitted); see also Granite Music Corp. v. Ctr. St. Smoke House, Inc.,

(W.D.N_Y. 2011) (citation omitted). 2. Plaintiff’s Allegations Are Factually and Legally Sufficient to Support its Claims of Copyright Infringement. Plaintiffs allegations in the Amended Complaint support its copyright infringement claims. It is well-settled that “[t]o 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 Tel. Serv. Co., Inc., 499 US. 340, 361,

,

(1991). a. Plaintiff Has Demonstrated Ownership of a Valid Copyright Plaintiff alleged that it is the owner of the copyrights. See Amended Complaint, | 3, 22, 29. Defendant admitted this allegation by failing to plead or otherwise defend against Plaintiff's Amended Complaint. Plaintiff, therefore, has met the first element. b. Plaintiff Has Demonstrated Direct Copyright Infringement by Defendant As to the second element, Plaintiff alleged that it has actionable claims for direct copyright infringement against Defendant based on Defendant’s unauthorized use of the “BitTorrent” protocol to illegally download, reproduce, distribute, perform and display Plaintiffs Works. Specifically, Plaintiff's Amended Complaint alleges that: * The BitTorrent file distribution network (“BitTorrent”) is one of the most common peer-to-peer file sharing systems used for

distributing large amounts of data, including . . . digital movie files. /d. at { 10.

* Inorder to distribute a large file, the BitTorrent protocol breaks a file into many small pieces. Users then exchange these small pieces among each other[.| Jd. at 9 12.

+ After the infringer receives all of the pieces of a digital media file, the infringer’s BitTorrent client software reassembles the pieces so that the file may be opened and utilized. Jd. at { 13.

- Plaintiffs investigator, IPP International UG established a direct TCP/IP connection with the Defendant’s IP address as set forth on Exhibit A. Jd. at 417. * Plaintiff’s investigator downloaded from Defendant one or more pieces of each of the digital media files identified by the file hashes on Exhibit A. /d. at 18.

* Each digital media file as identified by the file hash listed on Exhibit A correlates to a copyrighted film owned by Plaintiff, as set forth on Exhibit B. /d. at 4 19.

Further, each digital media file as identified by the file hash listed on Exhibit A has been verified to contain a digital copy of a movie that is identical (or alternatively, strikingly similar or substantially similar) to Plaintiff's corresponding original copyrighted work listed on Exhibit B. dd. at 21.

+ By using BitTorrent, Defendant copied and distributed the constituent elements of each of the original works covered by the Copyrights-in-Suit. fd. at 4 30.

* Plaintiff did not authorize, permit or consent to Defendant’s distribution of its works. Jd. at 31.

- Asa result of the foregoing, Defendant violated Plaintiff's exclusive [copyrights]. fd. at § 32.

+ Defendant’s infringements were committed “willfully” within the meaning of

(c)(2). fd. at ¥ 33. Defendant’s acts of infringement were committed with knowledge and willfulness. The

very nature of the torrent platform evidences Defendant’s intent to infringe copyrights. First, and

more obvious, getting a film for free, when a person would otherwise have to pay for it, evidences intent to bypass legitimate means to obtain that film. Accordingly, such conduct shows knowledge of copyright infringement. See Arista Records, Inc. v. Becker Enterprises, Inc.,

(S.D.FL. 2003) (stating that the sales price is good evidence that a defendant knew he

was infringing copyrights when that sales price is well below the average retail price). Second, this Court may infer that Defendant willfully infringed Plaintiff's copyrights because of Defendant’s default. See, e.g., Christ Ctr. of Divine Philosophy, Inc. v. Elam, No. CIV- 16-65-D,

, at *6 (W.D. Okla. Feb. 10, 2017) (The Court, thus, concludes that Defendant is liable for...copyright infringement... the Court also concludes that Defendant infringed these copyrights willfully. Defendant's default and her decision not to defend against these allegations are grounds for concluding that her actions were willful.”); Arista Records, Inc. v. Beker Enters. at 1313; Boost Worldwide, Inc. v. Summit City Check Cashing, No. 5:11CV2466,

, at *11 (N.D. Ohio Feb. 22, 2012) (“Willfulness can also be inferred from a defendant's default.”); Third, it is clear that downloading the particular torrent software is a willful act, in and of itself, particularly as that software’s main purpose is to share unlicensed content. In the case of the torrent software, a substantial amount of technica! configuration is required. Fourth, it has been shown that the use of the BitTorrent protocol is primarily for the infringement of copyrights. As stated in a January 2010 study by a Princeton Senior Sauhard Sahi (under the supervision of Princeton Professor Ed Felton), about 99% of all files in BitTorrent were infringing copyrights (10 of the 1021 files were found to be likely noninfringing), with 100% of movie and television files found to be infringed content. See attached hereto as Exhibit “C” a true

a correct copy of the article entitled “Princeton study - 99% of BitTorrent files pirated” by George

Ou, originally posted January 29, 2010 on http://www.digitalsociety.org/2010/01/princeton-study- 99-of-bittorrent-files-pirated/. Indeed, “BitTorrent is to stealing movies, TV shows, music, videogames, and now books what bolt-cutters are to stealing bicycles.” The International Federation for Phonographic Industry (IFPI), issued a thought provoking report entitled “Music, how, when and where you want it,” attached as Exhibit “E” hereto. On

page 18, the IFPI provides statistics establishing that file sharers’ primary motivation for their theft is the “lure of free:” A separate body of research helps explain why illegal file-sharing is having this impact on consumer behavior, confirming the main driver of piracy to be not better choice or quality, but the “lure of free”. Researchers GFK found that “because it’s free” was the main answer given among over 400 illegal filesharers in research unveiled in Sweden in July 2009. A study by Entertainment Media Research in the UK found that 71 per cent of those who admitted they increased their file- sharing activity in 2008 did so “because it’s free”. In Norway, research by Norstat in 2009 also found the most cited reason for illegal downloading from P2P services was “because it’s free”. Further studies came to broadly the same conclusion in Japan and Belgium in 2009. Plaintiff has further alleged that Defendant formed part of a BitTorrent “swarm” infringing the copyrighted Works through the results of Plaintiff's forensic investigation. Specifically, Plaintiff has alleged that: * Jnorder to distribute a large file, the BitTorrent protocol breaks a file into many small pieces. Users then exchange these small pieces among each other[.] Amended Complaint, { 12.

* Each piece of a BitTorrent file is assigned a unique cryptographic hash value. Jd. at { 14.

See Testimony of Scott Turow President of the Authors Guild Before the Senate Judiciary Committee, February 16, 2011, at p. 4, a copy of which is attached hereto as Exhibit “D” and was accessed on January 18, 2018 at https://www_judiciary.senate.gov/imo/media/doc/11-2-16%20Turow%20Testimony pdf.

10

« The BitTorrent protocol utilizes cryptographic hash values to ensure each piece is properly routed amongst BitTorrent users as they engage in file sharing. /d. at { 15.

- The entirety of the digital media file also has a unique cryptographic hash value . . . Once infringers complete downloading all pieces which comprise a digital media file, the BitTorrent software uses the file hash to determine that the file is complete and accurate.

at {| 16.

* Plaintiff's investigator downloaded from Defendant one or more pieces of each digital media files as listed in Exhibit A.

at Y18. + Each digital media file as identified by the file has listed on Exhibit A correlates to a copyrighted film owned by Plaintiff, as set forth on Exhibit B. Jd. at (19. - A full copy of each digital media file was downloaded from the BitTorrent file distribution network, and it was confirmed through independent calculation that the file hash correlating to each file matched what is listed on Exhibit A. At no point was Plaintiffs copyrighted content uploaded to any other BitTorrent user.

at { 20.

- Each digital media file as identified by the file has listed on Exhibit A has been verified to contain a digital copy of a movie that is identical (or alternatively, strikingly similar or substantially similar) to Plaintiff's corresponding original copyrighted work listed on Exhibit B. Jd. at § 21.

* Plaintiff's investigator connected, over a course of time, with Defendant’s IP address for each digital media file identified by the hash value as listed on Exhibit A. The most recent TCP/IP connection between IPP and the Defendant’s IP address for each file hash value listed in Exhibit A is included within the column labeled Hit Date UTC. Jd. at 24.

By defaulting, Defendant has conceded the truth of the foregoing allegations. Greyhound Exhibitgroup, Inc. v. E.L.UL. Realty Corp. at 158. Courts have held that using file-sharing software and protocols, such as BitTorrent, to

download copyrighted works and reproduce, distribute, display or perform them without

li

permission of the copyright holder constitutes copyright infringement. See, e.g., John Wiley & Son, Inc. v. Williams,

(S.D.N.Y. Oct. 26, 2012) (finding that the

nature of BitTorrent peer-to-peer file sharing leads to further distribution of copyrighted works). Sony BMG Music Entm’t v. Tenenbaum,

(1* Cir. 2011) (finding copyright infringement where file-sharing software was used to download and distribute media); Donkeyball Movie, LLC v. Does 1-171,

, *1-4 (D.D.C. 2011) (upholding expedited discovery of the nature used in this case where defendants used the BitTorrent protocol to illegally distribute plaintiff's motion picture); Virgin Records America, Inc. v. Bagan,

, at *3 (D.N.J. 2009) (holding that “using P2P network software to download copyrighted recordings and distribute them over the network without permission of the copyright holder constitutes copyright infringement”); BMG Music v. Gonzalez,

(7 Cir, 2005) (downloading copyrighted works through peer-to-peer networks is not fair use). By downloading the Works and reproducing, distributing, displaying or performing it using the BitTorrent protocol, Defendant has infringed Plaintiffs’ copyright on these Works. See

. Based upon these admitted allegations, Plaintiff has established grounds to impose liability on Defendant for direct copyright mfringement. C. Statutory Damages Should be Awarded to Plaintiff Plaintiff hereby elects to recover statutory damages against Defendant as provided by

Section 504(a) of the Copyright Act provides that “an infringer of copyright is

2 Plaintiff need not prove actual damages to be entitled to an award of statutory damages, and may make an election of statutory damages “regardless of the adequacy of the evidence offered as to [its] actual damages and the amount of [Djefendant’s profits.” Columbia Pictures Television, Inc., v. Krypton Broad, of Birmingham, Inc.,

(9" Cir, 2001), cert. denied,

,

(2002),

12

liable for . . . (2) statutory damages, as provided by subsection (c).”

(a)(2), For unintentional infringement,

(c) provides that “the copyright owner may ... recover

... an award of statutory damages for all infringements involved in the action, with respect to any one work... a sum of not less than $750 or more than $30,000 as the court considers just.” 17 U.S.C, § 504(c)(1). This is not unintentional infringement, however, and pursuant to

(c)(2), the Court upon a finding of willful infringement may “increase the award of statutory damages to a sum of not more than $150,000.”

(c)(2). Here, Plaintiff pled that Defendant’s infringement was committed willfully. Amended Complaint, { 33. Therefore, a statutory damages award up to $150,000 would be appropriate. Significantly, legislative history demonstrates that Congress, recognizing the likelihood of widespread infringement through the internet, specifically amended the Copyright Act through the Digital Theft Deterrence Act of 1999 to increase the penalties for copyright infringement: By the turn of the century the Internet is projected to have more than 200 million users, and the development of new technology will create additional incentive for copyright thieves to steal protected works. The advent of digital video discs, for example, will enable individuals to store far more material than on conventional discs and, at the same time, produce perfect secondhand copies . .. Many computer users are either ignorant that_ copyright laws apply to Internet activity, or they simply believe that they will not be caught or prosecuted for their conduct. Also, many infringers do not consider the current copyright infringement penalties a real threat and continue infringing, even after a copyright owner puts them on notice that their actions constitute infringement and that they should stop the activity or face legal action. In light of this disturbing trend, it is manifest that Congress respond appropriately with updated penalties to dissuade such conduct, H.R. 1761 increases copyright penalties to have a significant deterrent effect on copyright infringement. H.R. Rep. No. 106-216, at 3 (1999) (Emphasis added).

13

Here, despite the fact of Defendant’s willful infringement, Plaintiff only seeks an award of $12,000.00 in statutory damages ($750.00 per work). This amount is reasonable when considering that Plaintiff's actual damages far exceed this sum. To explain, Defendant materially aided each of the other participants in the BitTorrent swarm of infringers. This swarm contained thousands of peers and continues to grow. Plaintiff's actual damages are the lost sales of its content to those thousands of infringers. In the aggregate, these lost sales far exceed $12,000.00." Courts routinely award statutory damages in an amount equal to $30,000.00 for intentional online copyright infringement per work on default judgment. See, e.g., Achte/Neunte Boll King Beteiligungs GMBH & Co KG v. Palmer,

, at *1-2 (M.D. Fla. 201 1) (on default judgment, awarding $30,000 statutory damages for online infringement); Liberty Media Holdings, Inc. v. Quynn Alan Phillips, Everette v. Astrue, No. 3:11-cv-00029-JAH-JMA, ECF No. 12 (S.D. Cal. June 6, 2011) (same); Getaped.com, Inc. v Cangemi,

(S.D.N.Y. 2002) (same). Here, the Court should thus award statutory damages of $12,000.00 to Plaintiff because said amount is reasonable and appropriate based on each Defendant’s multiple willful infringements, and the legislative intent behind the Digital Theft Deterrence Act of 1999. D. Injunctive Relief Should be Awarded to Plaintiff

3 Because Plaintiff here seeks only statutory damages within the range requested in the Complaint, no evidentiary hearing is necessary. See, e.g., Ortiz-Gonzalez v. Fonovisa,

(D.P.R. 2002} {no hearing necessary for determination of award of statutory damages; D.C. Comics Inc. v. Mini Gift Shop,

, 35, 37 Qd Cir. 1990) (same); Fustock v. ContiCommodity Servs., Inc.,

, 40 (2d Cir. 1989) (“While it is true. . . that the damages in this case were neither liquidated nor capable of mathematical calculation, it was not necessary for the District Court to hold a hearing, as long as it ensured that there was a basis for the damages specified in a default judgment.”). 14

Permanent injunctive relief should be awarded to Plaintiff. Plaintiff seeks an injunction: (A) Permanently enjoin[ing] Defendant and all other persons who are in active concert or participation with Defendant from continuing to infringe Plaintiff's copyrighted works; (B) Order[ing] that Defendant delete and permanently remove the digital media files relating to Plaintiff's works from each of the compuiters under such Defendant’s possession, custody or control; [and] (C) Order[ing] that Defendant delete and permanently remove the infringing copies of the works Defendant has on computers under Defendant’s possession, custody or control . . . Amended Complaint, at p. 6 {J (A)-(C). Permanent injunctive relief to prevent or restrain copyright infringement is authorized under the Copyright Act. See

(a) (“Any court having jurisdiction of a civil action arising under this title may, subject to the provisions of section 1498 of title 28, grant temporary and final injunctions on such terms as it may deem reasonable to prevent or restrain infringement of a copyright.”). The Copyright Act further provides that “the court may order the destruction . .

_ of all copies . . . found to have been made or used in violation of the copyright owner’s exclusive rights... [.]”

(b). A plaintiff seeking a permanent injunction “must demonstrate: (1) that it has suffered an itreparable injury; (2) that remedies available at law, such as monetary damages, are inadequate to compensate for that injury; (3) that, considering the balance of hardships between plaintiff and defendant, a remedy in equity is warranted; and (4) that the public interest would not be disserved by a permanent injunction.” eBay, Inc. v. MercExchange, LLC,

, 391, 126 8.Ct. 1837,

(2006). Here, Plaintiff has plainly demonstrated each of these factors. Addressing the first and second factors, Plaintiff has demonstrated that absent an injunction, Defendant will continue to cause Plaintiff irreparable injury that cannot fully be 15

compensated or measured in money. Specifically, Plaintiff has established that Defendant’s conduct has exposed the Works to “viral” infringement using the BitTorrent protocol, in which

users in a BitTorrent “swarm” simultaneously upload and download the Works between and among innumerous other users. Amended Complaint, J 11. By virtue of the workings of the

BitTorrent protocol, a “seeder” of the copyrighted Work distributes the whole, or portions of, the

Work to other recipient peer users, who in turn deliver the whole or portion of the Work to other

users in the “swarm.” Jd. Thus, absent injunctive relief to force the deletion of each torrent file

or copy of the Works from Defendant’s computers (and from the computers of those persons utilizing the BitTorrent protocol in active concert or patticipation with Defendants), infringement of the Works can continue unabated in exponential fashion. Jd. Monetary damages, therefore, are inadequate to compensate Plaintiff for such irreparable injury, as Defendant continues, and will

continue, to harm Plaintiff on a daily basis. See Malibu Media, LLC v. Ofiesh, at *7 (“(MJonetary damages are insufficient to compensate Plaintiff for the injury it has suffered because such

damages will not prohibit future infringement.”); Microsoft Corp. v. Big Boy Distribution LLC,

(S.D. Fla. 2008) (“Generally, a showing of copyright infringement liability and threat of future violations is sufficient to warrant entry of a permanent injunction.”). Considering the balance of hardships between Plaintiff and Defendant, “there is no

hardship to Defendant because a permanent injunction will do no more than prevent Defendant

from engaging in further unlawful activity.” Malibu Media, LLC v. Ofiesh at 7-8. “[A]ny injury to [Defendants] caused by the. . . injunction would be a result of [Defendants] ceasing the allegedly infringing conduct.” Medias & Co., Inc. v. Ty, Inc.,

(D. Colo. 2000). Hence, “this merits little equitable consideration.” fd. Consequently, the balance of hardships weighs in Plaintiff's favor.

16

Finally, Plaintiff's prevention of copyright infringement is in the public interest because it not disserve the public interest; in fact, to the contrary, it will protect copyrighted material and encourage compliance with the Copyright Act.” Malibu Media, LLC v. Ofiesh at 8. Further, it “preserv[es] the integrity of copyright laws which encourage individual effort and creativity by granting valuable enforceable rights.” DSC Communications Corp. v. DGI Technologies,

(N.D. Tex. 1995). Courts routinely issue injunctive relief as part of a default judgment where, as here, an online media distribution system was used to download and distribute copyrighted works without permission. See, e.g., McGraw-Hill Glob. Educ. Holdings, LLC v. Khan,

at *18-19 (S.D.N.Y. June 22, 2018) (holding that a permanent injunction is appropriate because “Plaintiffs have demonstrated that lost profits alone would not compensate them for the unauthorized use of their copyrights.”); Warner Bros. Records, Inc., v. Novak,

, at *2-3 (D.N.J. 2007) (holding that a permanent injunction enjoining defendants from infringing on plaintiffs’ copyrighted sound recordings “is appropriate and reasonable given [d]efendant’s continuing infringement on [p]laintiff’s sound recordings, and [djefendant’s failure to respond’’); Axact (PVT), Ltd. v. Student Network Resources, Inc.,

, at *3 (D.N.J. 2008) (granting injunctive relief to defendants on default judgment of copyright infringement claims of academic works and term papers). Plaintiff, therefore, has demonstrated that it has suffered irreparable harm, and that remedies at law are inadequate. A permanent injunction is appropriate as it will cause no harm to Defendant, and such relief will be in the public interest. Therefore, Court should thus grant Plaintiff the requested injunctive relief. E. Costs of Suit Should be Awarded to Plaintiff

17

Plaintiff is entitled to recovery of its costs of suit incurred in this action. Section 505 of

the Copyright Act expressly authorizes recovery of “full costs by or against any party other than

the United States or an officer thereof,” and further provides for an “award [of] a reasonable

attorney’s fee to the prevailing party as part of the costs.”

. Courts routinely award costs to prevailing plaintiffs on default judgment, and especially when the infringement is willful. See, e.g., Stevens v. Aeonian Press, Inc.,

at *12 (S.D.N.Y. Oct. 22, 2002) (“Given the willful nature of the infringement by Defendants ... the Court has found that an award of costs and attorney's fees is appropriate, and is

in line with the statutory goals of compensation and deterrence.”); Axact (PVT), Lid. v. Student

Network Resources at *3 (“Indeed, it has often been held that attorney’s fees are awarded to

prevailing copyright plaintiffs ‘generally’ or ‘ordinarily.’”) (citing Rural Telephone Service Co.,

Inc. v. Feist Pubs., Inc.,

, at *3 (D. Kan. 1992); A&N Music Corp. v. Venezia,

(E.D. Pa. 1990) (awarding costs and attorneys’ fees where defendants “knowingly infringed” upon plaintiff's copyrights, and “failed to appear before [the] court to offer

an explanation for his conduct”). In this case, the declaration of Plaintiff's counsel states that Plaintiff has incurred $594.00

incosts. See Decl, of Kevin T. Conway, Esq. 48. Defendant in this case was not acting innocently when infringing Plaintiff's copyrighted Works using the BitTorrent protocol. As established by Plaintiff, Defendant’s infringements were committed “willfully” under the Copyright Act, and

Defendant’s failure to respond to the Amended Complaint further demonstrates an unwillingness

to respect applicable law. Amended Complaint, { 33. Accordingly, Plaintiff should be allowed recovery of its costs incurred in this action.

IV. CONCLUSION

18

Based on the foregoing, Plaintiff respectfully requests entry of a default judgment in favor of Plaintiff and against Defendant, in the form of the Proposed Default Judgment and Permanent Injunction attached hereto. WHEREFORE, Plaintiff, Malibu Media, LLC, respectfully requests that this Honorable Court enter a default judgment in favor of Plaintiff and against Defendant (A) Awarding Plaintiff statutory damages in the amount of $12,000.00 pursuant to

(c)(1); (B) Awarding Plaintiff its reasonable costs of $594.00 pursuant to

; (C) Permanently enjoining Defendant from directly, contributorily or indirectly infringing Plaintiff's rights under federal or state law of Plaintiff's copyrighted works (the “Works”’), including, without limitation, by using the internet, BitTorrent or any other online media distribution system to reproduce (e.g., download) or distribute the Works, or to make the Works available for distribution to the public, except pursuant to a lawful license or with the express authority of Plaintiff, (D) Ordering that Defendant destroy all copies of Plaintiff's Works that Defendant has downloaded onto any computer hard drive or server without Plaintiffs authorization, and shall destroy all copies of the Works transferred onto any physical medium or device im Defendant’s possession, custody, or control; and (E) Granting Plaintiff any other and further relief this Court deems just and proper. Dated: July, 2020 Respectfully Submitted, By: /s/ Kevin T. Conway Kevin T. Conway (KC-3347) 80 Red Schoolhouse Road, Suite 110 Spring Valley, NY 10977 T: (845) 352-0206 F: (845) 352-0481

19

Email: [email protected] Attorneys for Plaintiff CERTIFICATE OF SERVICE I hereby certify that on July 30, 2020, I electronically filed the foregoing document with the Clerk of the Court and all parties using the CM/ECF system. Participants in the case who are registered CM/ECF users will be served by the CM/ECF system. I further certify that some of the participants in the case are not CM/ECF users. [ have mailed the foregoing document via U.S. Mail to the persons set forth in the Service List below.

By: /s/ Kevin T. Conway Kevin T. Conway, Esq.

Service List =

CERTIFICATE OF COMPLIANCE [hereby certify that there are 4,662 words in this Memorandum (excluding cover page, certifications and tables of contents and authorities) which complies with the Honorable Judge John G. Koeltl’s formatting rules found in his Individual Rules of Practice section 2(D).

By: /s/ Kevin T, Conway Kevin T. Conway, Esq.

20

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK

ct te ie enna neice

MALIBU MEDIA, LLC, : : Case No. 1:19-cv-07189-JGK Plaintiff, : VS. : XOuN =iB). Defendant. : ee tee eee teen enennnmemeee DECLARATION OF KEVIN T. CONWAY ESO., IN UPPORT OF MOTION FOR ENTRY OF FINAL DEFAULT JUDGMENT AGAINST DEFENDANT [piso Neal) Pursuant to

, I Kevin T. Conway, hereby declare:

1. I am an attorney with The Law Offices of Kevin T. Conway, attorneys for

Plaintiff, Unless otherwise stated, I have personal knowledge of the following facts and, if called

and sworn as a witness, could and would competently testify thereto. 2. On July 31, 2019, Plaintiff filed the Complaint in this action. [CM/ECF 1]. 3. Pursuant to the issuance of third-party subpoenas, Defendant’s Internet Service Providers (“ISP”) disclosed Defendant’s true identity to Plaimtiff. 4. On December 15, 2019, Plaintiff filed the Amended Complaint in this action

[CM/ECF 14]. 5. On July 27, 2020, a Clerk’s Certificate of Default against Defendant i was entered, [CM/ECF 39]. 6. Defendant has failed to appear, plead or otherwise defend in this action.

7. Defendant is not a minor, incompetent, or in active duty military. 1 EXHIBIT B

8. Plaintiff has incurred costs in this case in the amount of $594.00, which includes

the statutory filing fee of $400.00, ISP fees of $75.00 and process service fees of $119.00.

FURTHER DECLARANT SAYETH NAUGBY. DECLARATION PURSUANT TO

, I hereby declare under penalty of perjury under the

laws of the United States of America that the foregoing is true and correct.

Executed on this 30" day of July, 2020.

By:

2 EXHIBIT 8

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK ee ee enema K MALIBU MEDIA, LLC, : Case No. 1:19-cv-07189-JGK Plaintiff, : vs. : BY a8),

Defendant. : ee cnt ne ete IK NOTICE OF FILING PLEASE TAKE NOTICE, Plaintiff hereby files Demovsky Lawyer Services Invoice No. 392117, in the amount of $119.00, and Verizon Invoice No, 2019255352, in the amount of $75.00, in support of its Motion for Default Judgment [CM/ECF 40] and it’s supporting Memorandum of

Law with Exhibits [CM/ECF 41], and Declaration of Kevin T. Conway [CM/ECF 42], to recover additional costs expended by Plaintiff. Dated: July 30, 2020 By: /s/ Kevin T. Conway Kevin T. Conway, Esq. (KC-3347) 80 Red Schoolhouse Road, Surte 110 Spring Valley, New York 10977 T: 845-352-0206 F: 845-352-0481 E-mail: [email protected] Attorneys for Plaintiff

I Notice of Filing - SNY556

CERTIFICATE OF SERVICE I hereby certify that on July 30, 2020, I electronically filed the foregoing document with

the Clerk of the Court and all parties using the CM/ECF system. Participants in the case who are

registered CM/ECF users will be served by the CM/ECF system. I further certify that some of the participants in the case are not CM/ECF users. I have

mailed the foregoing document via U.S. Mail to the persons set forth in the Service List below.

By: /s/Kevin Conway Kevin 1. Conway, Esq. Service List

2 Notice of Filing — SNY556

RJCEEWY ONY ECiv WE WEN [voice Numb P.O. Box 2083 3921 New York, NY 10013 Invoice Dat Ph. 212-925-1220 Fax 212-941-0235 Jan 30, 20 www.disnational.com Pac NYC/DCA LIC. # 1416526

Malibu Media 1955 West Baseline Road Suite 113 □ Mesa, AZ 85202 □

| __—_—_— Worksheet Number ____ PaymentTerms 10900 264198 Net 30 Days Request Date | __Due Date | 6/24/20 7/30/20

Quantity Unit Price | □□□□□□□□□ MALIBG MEDIA, LIC VY YI-TING | CHEN 19 c¥ 07189 5MN Process Service - Manhattan i 419,090 □□□□ YI-TING CHEN

Check No: Subtotal 119. Sales Tax EES Discover Total Invoice Amount 119.) Payment Received Q. Pay online! _ _ —_— TOTAL | □□□□ disnational.com KINDLY NOTE: 1.33% interest per month (16% annually} will accrue on Please make checks payable invoices not paid within our terms of fo: DLS, inc. and return to the et em kes 64 dose 30 -days. P.O, Box Jisted above,

SAN ANGELO, Tx, 76904 ee eee TAX 10: 23-2259884 / Cage # 3L7L6 PHN: 868-483-2600 FAX: 325-949-6016 Case Invoice Account # NY437824 Payment Due Date: 12/19/2019

om □□ KEVIN T CONWAY ESQ 5 NM CS 80 RED SCHOOLHOUSE ROAD STE 110 “ SPRING VALLEY , NY, 10977

1:48-u07 180-3GK # Hours: 1 / 375.00 09/09/20 19 KEVIN CONWAY $75.00 $75.00 □ Hour

$75.00

$75.00

Please return a copy of this summary with your payment, Please reference invoice number on your remitlance check, Account | Total Amountbue _—(| □□□□□□□□□□□□□□□□□□□□□□ . . Payment Due Date _ | Amount Enclosed —_| Amount Enclosed | ___NY137824 75.00 12/18/2019 Po Make check payable to: KEVIN T CONWAY ESQ 80 RED SCHOOLHOUSE ROAD STE 110 VERIZON SECURITY SUBPOENA COMPLIANGE SPRING VALLEY , NY, 10977 2701 S. JOHNSON ST. SAN ANGELO, TX, 76904

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK

ee ee etter MALIBU MEDIA, LLC, : : Case No. 1:19-cv-07189-JGK Plaintiff, : vs. : CLE. :

Defendant. it te PLAINTIFF, MALIBU MEDIA, LLC’S, STATEMENT OF DAMAGES 1. Principal Amount sued □□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□ $12,000.00! 2. Costs and Disbursements: © Clerk’s £6.00. □□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□ 0,00 * Process Server fee for □□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□ eres DLLI.00 « Fees to Third-Party for Subpoena Response.................575.00 + Statutory f0C..........c cece cece □□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□ 390,00 3. Total (as of July 28, 2020)...... cece cece eeese eeeeeeee 12,594.00 4, Affixed as Exhibits hereto: « A- Summons + B- Amended Complaint C- Proof of Service

$750.00 per infringement.

Dated: July 30, 2020 Respectfully submitted, By: /s/ Kevin ZT. Comvay Kevin T. Conway, Esq. (KC-3347) 80 Red Schoolhouse Road, Suite 110 Spring Valley, New York 10977 T: 845-352-0206 F: 845-352-0481 E-mail: [email protected] Attorney jor Plaintiff

CERTIFICATE OF SERVICE I hereby certify that on July 30, 2020, I electronically filed the foregoing document with the Clerk of the Court and all parties using the CM/ECF system. Participants in the case who are registered CM/ECF users will be served by the CM/ECF system. I further certify that some of the participants in the case are not CM/ECF users. I have mailed the foregoing document via U.S. Mail to the persons set forth in the Service List below.

By. 4s/Kevin Conway Kevin T. Conway, Esq. Service List hit DE □ =

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK MALIBU MEDIA, LLC, Plaintiff, 19ev7189 (JGR)

- against - ORDER casas. Defendant. ee JOHN G. KOELTL, District Judge: The plaintiff has moved for a default judgment. The defendant should respond by August 14, 2020. If the defendant fails to respond, the motion will be decided on the current

papers, in which event the defendant may have no trial. If the defendant responds, the plaintiff may reply by August 21, 2020. The plaintiff is directed to serve a copy of this Order on the defendant and file proof of service on the docket by August 4, 2020. SO ORDERED. Dated: New York, New York July 31, 2020 /s/ John G. Koeltl John G. Koeltl United States District Judge

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK

eee ten eee ence nun MALIBU MEDIA, LLC, : Case No. 1:19-cv-07189-JGK. Plaintiff, : VS. : By ED), :

Defendant. : ee einen □□ einen eee DR, NOTICE OF MAILING Pursuant to this Court’s Order [CM/ECF #45] dated July 31, 2020, Plaintiff hereby gives notice of serving a copy of said Order upon Defendant, via first class U.S. Mail, on August 4, 2020, and attaches proof of mailing hereto.

Dated: August 5, 2020 Respectfully Submitted, By: /s/ Kevin T. Conway Kevin T. Conway (KC-3347) 80 Red Schoolhouse Road, Suite 110 Spring Valley, NY 10977 T: (845) 352-0206 F: (845) 352-0481 Email: [email protected] Attorneys for Plaintiff

CERTIFICATE OF SERVICE [hereby certify that on August 4, 2020, I electronically filed the foregoing document with the Clerk of the Court and all parties using the CM/ECF system. Participants in the case who are registered CM/ECF users will be served by the CM/ECF system. I further certify that some of the participants in the case are not CM/ECF users. I have mailed the foregoing document via U.S. Mail to the persons set forth in the Service List below.

By: /s/ Kevin T. Conway Kevin T. Conway, Esq.

Service List ple) ens

a Receipt Print Date: Aug 04, 2020

UNITED STATES. POSTAL SERVICE.

RETURN TO REFERENCE . KEVIN T, CONWAY Ship Date: Aug Od, 2020 80 Red Schoolhouse Road Ship from ZIP: 10977 Spring Valley, NY 10977 Weight: 0 lbs, 1 02. User: Kevin Conway SHIP TO Cost Cade: <None> YETING CHEN Refund Type: E-refund 350 W 42ND STREET, APT 276 Reference #: NEW YORK, NY 10977 US Printed on: Shipping label Tracking #: 00040899563763215764

SERVICE UNIT PRICE

First Class @ Envelope $0.50 Tracking $0,00 Insurance (N/A}

Subtotal $0.50 Labet Quantity Total Cast $0.50

LESLIE A. FARBER, LLC ATTORNEYS AT LAW ACADEMY SQUARE 33 PLYMOUTH STREET, SUITE 204 MONTCLAIR, NEW JERSEY 07042-2607 973.509.8500 x 213 973.860.1174 (fax) E-mail: [email protected] Web page: www.LFarberLaw.com

August 11, 2020

Hon. John G. Koeltl, U.S.D.J. United States District Court - Southern District of New York Daniel Patrick Moynihan United States Courthouse 500 Pearl Street New York, NY 10007 Re: Malibu Media v. RSS NSD Civil Action No. 1:19 cv 07189 (JGK) Dear Judge Koeltl: [ represent the defendant in the above referenced case. Filed simultaneously herewith is a ptoposed Consent Order to Vacate Default and permit the defendant to file a responsive pleading in this case. Counsel for the plaintiff consents to the relief sought. If the form and content of this Consent Order meets with the Court’s approval, please endorse and file same. Respectfully submitted /s/ Leslie A. Farber Leslie A. Farber LAF Encl. cc: Kevin T. Conway, Esq. (via ECF)

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK

MALIBU MEDIA, LLC, Civil Action No. 1:19-cv-07189 (JGK) Plaintiff, | CONSENT ORDER TO VACATE ENTRY | OF DEFAULT AND EXTEND TIME TO Vv. | RESPOND TO COMPLAINT PURSUANT | TO E.R.C.P. 55(c) Syn) Xeur=i8) Defendant. | THIS MATTER having come before the Court upon the application of Leslie A. Farber, LLC, counsel for defendant, Leslie A. Farber, Esq., appearing, and with the consent of the attomey for plaintiff, for a Consent Order Vacating the Entry of Default, and the Court having considered the matter and for good cause having been shown, . IT IS on this | Ith day of August, 2020, ORDERED that Default entered on July 27, 2020, is hereby Vacated; and IT [8 FURTHER ORDERED that defendant be permitted to file a responsive pleading or otherwise move plead with respect to the Amended Complaint within 21 days of the entry of this Consent Order. Dated: August 11, 2020 Dated: August 11, 2020 LESLIE A. FARBER, LLC By: /s/ Kevin T. Conway By: /s/ Leslie A. Farber Kevin T. Conway, Esq. Leslie A. Farber, Esq. 80 Red Schoolhouse Road, Suite 110 33 Plymouth Street, Suite 204 Spring Valley, NY 10977 Montclair, NJ 07042 Ph, (845) 352-0206 Ph. (973) 509-8500 x213 Fax: (845) 352-0481 Fax: (973) 860-1174 email: [email protected] Email: [email protected] Attorneys for Plaintiff Attorneys for Defendant

IT IS SO ORDERED this | 1th day of August, 2020. New York, NY /s/ John G. Koeltl Hon. John G. Koeltl US.D.J.

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK eect ee etn een MALIBU MEDIA, LLC, : : Case No. 1:19-cv-07189-JGK Plaintiff, : VS. : BD DB),

Defendant. : te ee eee ne mmm PLAINTIFE’S NOTICE OF SETTLEMENT PLEASE TAKE NOTICE, Plaintiff, Malibu Media, LLC, has settled this matter with Defendant, John Doe subscriber assigned IP address 98.116.191.111 (“Defendant”) through his counsel. Upon satisfaction of the terms of the parties’ settlement agreement, to which Defendant still has executor obligations, Plaintiff will dismiss Defendant from this action with prejudice, Dated: September 15, 2020 Respectfully Submitted, By: /s/ Kevin T. Conway Kevin T. Conway (KC-3347) 7 Stokum Lane New City, NY 10956 T: (845) 352-0206 F: (845) 352-0481 Email: [email protected] Attorneys for Plaintiff

CERTIFICATE OF SERVICE Thereby certify that on September 15, 2020, I electronically filed the foregoing document with the Clerk of the Court using CM/ECF and that service was perfected on all counsel of record and interested parties through this system.

By: /s/ Kevin T. Conway Kevin T. Conway, Esq.

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK

oe ere ee ntegnee eee tenement MALIBU MEDIA, LLC, : : Case No. 1:19-cv-07189-JGK Plaintiff, : : The conference scheduled for today, vs. . September 16, 2020 is cancelled. eSs. : |New York,NY si John G. Koeltl September 16, 2020 John G. Koeltl, U.S.D.J Defendant. :

PLAINTIFF’S NOTICE OF SETTLEMENT PLEASE TAKE NOTICE, Plaintiff, Malibu Media, LLC, has settled this matter with Defendant, John Doe subscriber assigned IP address 98.116.191.111 (“Defendant”) through his counsel. Upon satisfaction of the terms of the parties’ settlement agreement, to which Defendant still has executor obligations, Plaintiff will dismiss Defendant from this action with prejudice. Dated: September 15, 2020 Respectfully Submitted, By: /s/ Kevin 7. Conway Kevin T. Conway (KC-3347) 7 Stokum Lane New City, NY 10956 T: (845) 352-0206 F: (845) 352-0481 Email: [email protected] Attorneys for Plaintiff

CERTIFICATE OF SERVICE hereby certify that on September 15, 2020, I electronically filed the foregoing document

with the Clerk of the Court using CM/ECEF and that service was perfected on ali counsel of record

and interested parties through this system.

By: /s/ Kevin T. Conway Kevin T. Conway, Esq.

el ee et Oe ele re Eee ele ES eres □□□ ee Ere eee Nee ee OES ee gy AG 12) (6/90 TO: , Register of Copyrights REPORT ON THE Copyright Office FILING OR DETERMINATION OF AN Library of Congress ACTION OR APPEAL Washington, D.C, 20559 REGARDING A COPYRIGHT

In compliance with the provisions of 17 U.S.C, 508, you are hereby advised that a court action or appeal has been filed on the following copyright(s): COURT NAME AND LOCATION MacTiON 1 APPEAL U.S. District Court - Southern District of New York DOCKET NO, DATE FILED 500 Pearl Street 19cv7189 9/16/2020 New York, NY 10007 PLAINTIFF DEFENDANT Malibu Media, LLC Sad yOu 10

COPYRIGHT .

pOU——CCCCCC“‘(S BOO aU sO

In the above-entitled case, the following copyright(s) have been included: DATE INCLUDED -TINCLUDED BY C1] Amendment L] Answer ["] Cross Bill [_] Other Pleading COPYRIGHT

DO TOUE—C—“(‘i‘iL In the above-entitled case, a final decision was rendered on the date entered below. A copy of the order or judgment together with the written opinion, if any, of the court is attached. COPY ATTACHED WRITTEN OPINION ATTACHED DATE RENDERED i Order CI Judgment Yes iv No 9/16/2020 CLERK (BY) DEPUTY CLERK DATE Ruby J, Krajick S/ K, Sing 9/16/2020, 1} Upon initiation of action, 2} Upon filing of document adding copyright(s), 3) Upon termination of action, mail copy to Register of Copyrights mail copy to Register of Copyrights mail copy to Register of Copyrights DISTRIBUTION: 4) In the event of an appeal, forward copy to Appellate Court 5) Case File Copy ‘

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Copyrights-In-Suit for IP Address 98.116.191.111 ISP: Verizon Internet Services Location: New York, NY

Title Number ce ‘Publication = | Registration. = [UTC

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Total Malibu Media, LLC Copyrights Infringed: 16

. EXHIBIT B SNY556

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK

MALIBU MEDIA, LLC, | Civil Case No. 1:19-cv-07189-JGK Plaintiff, | DECLARATION OF V. JOHN DOE subscriber assigned EP address 98.116.191.111, Defendant. |

1. I, Ree =e), am the defendant in the above captioned case. I make this Declaration in support of the parties’ joint application to permanently leave “John Doe 98.1 16.191.111”

as the named defendant and permanently sealing certain documents or redacting my real and address from those documents. I have personal knowledge of the facts contained herein. 2. Tam the subscriber of the internet account which is referred to in plaintiff's Complaint and Amended Complaint. 3, Neither my immediate family nor other family member (to the best of my knowledge) ever received a notice from the internet service provider regarding this lawsuit. 4, When we were served with the Summons and Amended Complaint, this was the first time we were made aware of this lawsuit. I consulted with an attorney immediately. 5. I deny committing any copyright infringement and am unaware of any infringement having taken place using my IP address. 6. I work in the financial advisory industry which demands a clean record regarding lawsuits. Any public association of my name with a civil or criminal case jeopardizes my current and future employability. Additionally, I support local charities with education causes and having my name associated publicly with an infringement case puts my continued community involvement at risk.

7. This case has been settled among the parties pursuant to a confidential settlement agreement where no one admits fault, subject to defendant complying with certain terms. I certify under penalty of perjury under the laws of the United States of America that the foregoing is true and correct.

Dated: September_, 2020 edd DNOa 8 = B,