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`Case 2:20-cv-03129-MEMF-GJS Document 236 Filed 11/18/22 Page 1 of 25 Page ID
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`LINK 226 & 227
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` JS-6, O
`
`UNITED STATES DISTRICT COURT
`CENTRAL DISTRICT OF CALIFORNIA
`
`COLUMBIA PICTURES INDUSTRIES, INC.,
`et al.,
`
`Plaintiffs,
`
`
`
`v.
`
`ALEJANDRO GALINDO, et al.,
`Defendants.
`
` Case No.: 2:20-cv-03129-MEMF (GJSx)
`
`ORDER GRANTING PLAINTIFFS’
`MOTION FOR DEFAULT JUDGMENT
`AGAINST DEFENDANTS RICHARD
`HORSTEN, ANNA GALINDO, MARTHA
`GALINDO, OSVALDO GALINDO, RAUL
`ORELLANA, AND FIRESTREAM LLC [ECF
`NO. 227] AND GRANTING PLAINTIFFS’
`REQUESTS FOR RELIEF PURSUANT TO
`PLAINTIFFS’ SUPPLEMENTAL BRIEF IN
`SUPPORT OF MOTION FOR
`TERMINATING SANCTIONS AND ENTRY
`OF JUDGMENT AGAINST DEFENDANT
`ALEJANDRO GALINDO [ECF NO. 226]
`
`Before the Court is the Motion for Default Judgment filed by Plaintiffs Columbia Pictures,
`Industries, Inc.; Amazon Content Services, LLC; Disney Enterprises, Inc.; Paramount Pictures
`Corporation; Warner Bros. Entertainment Inc.; Universal City Studios Productions LLLP; Universal
`Television LLC; and Universal Content Productions LLC. ECF No. 227. Also before the Court is
`Plaintiffs’ Supplemental Brief in Support of their Motion for Terminating Sanctions and Entry of
`Judgment against Defendant Alejandro Galindo. ECF No. 226. For the reasons stated herein, the
`Court hereby GRANTS the Motion for Default Judgment and GRANTS Plaintiffs’ Request for
`judgment against Alejandro Galindo.
`
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`I.
`
`Factual Background1
`This case involves large-scale copyright infringement through an unlicensed internet
`streaming2 service. Plaintiffs Columbia Pictures Industries, Inc. (“Columbia”); Amazon Content
`Services, LLC (“Amazon”); Disney Enterprises, Inc. (“Disney”); Paramount Pictures Corporation
`(“Paramount”); Warner Bros. Entertainment, Inc. (“Warner Bros.”); Universal City Studios
`Productions LLLP (“Universal City”); and Universal Content Productions LLC (“Universal
`Content”) (collectively, “Plaintiffs”), either directly or through affiliates, “produce and distribute a
`significant portion of the world’s most popular television programs and motion pictures.” SAC ¶ 31.
`Plaintiffs own or hold “the exclusive U.S. rights . . . to reproduce, distribute, and publicly perform
`countless works, including by means of streaming those works over the Internet to the public.” Id. ¶
`32.
`
`Defendants Richard Horsten (a/k/a “Rik de Groot”) (“Horsten”), Alejandro (“Alex”)
`Galindo, Anna Galindo, Martha Galindo, Osvaldo Galindo, Raul Orellana (a/k/a “Touchstone”)
`(“Orellana”), and Firestream LLC (“Firestream”) (collectively, the “Nitro Defendants”) owned and
`operated Nitro TV, an unlicensed Internet Protocol television service (“IPTV”). Id. ¶¶ 1, 34.
`A. Nitro TV Platforms
`Nitro TV is a collection of web-based and application-based streaming platforms for use on
`mobile phones and smart TVs (collectively, the “Nitro TV Platforms”). Id. ¶ 2. For $20 per month,
`the Nitro Defendants offered Nitro TV subscription packages consisting of thousands of live and
`title-curated television channels available twenty-four hours a day, seven days a week, in the United
`States and abroad. Id. ¶¶ 1–3, 42. Beginning in or around May 2017, Nitro Defendants marketed,
`promoted, and sold Nitro TV subscriptions through NitroIPTV.com. Id. ¶ 41. Alex Galindo
`registered the domain name NitroIPTV.com with Domain.com LLC in December 2016. Id. In April
`2017, Horsten, under the alias Rik de Groot, registered the domain names for TekkHosting.com,
`
`
`1 Unless otherwise stated, the following factual background is derived from the Second Amended Complaint.
`ECF No. 113 (“SAC”).
`2 A “stream” is “digital data (such as audio or video material) that is continuously delivered one packet at a
`time and is usually intended for immediate processing or playback.” Stream, Webster’s Dictionary,
`https://www.merriam-webster.com/dictionary/stream (last visited Nov. 8, 2022).
`
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`2
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`Lalaluhosting.com, and Nitro.ltd with Namecheap, Inc. Id. All three sites are connected to the Nitro
`TV Platforms.
`Subscribers can obtain access to Nitro TV in two ways: (1) by purchasing a subscription
`through the Nitro TV website or another website maintained by the Nitro Defendants or (2)
`purchasing a subscription through a Nitro TV reseller. Id. ¶ 41. Many of the channels include
`popular television programs and movies such as The Office, Spider-Man: Homecoming, Toy Story 3,
`Star Trek Beyond, and Joker, and include works whose copyrights Plaintiffs own or exclusively
`control (“Copyrighted Works” or the “Works”). Id. ¶ 1. The channels also include live, California-
`based television networks such as Los Angeles ABC, CBS, CW, NBC, and FOX affiliates. Id. ¶ 50.
`Nitro TV also includes a “Catch Up” feature3 which allows a subscriber to access “television
`programming from the prior two days,” id. ¶ 51, and “24/7, title-curated channels,” which “are
`devoted to a single television series, motion picture, or franchise.” Id. ¶ 52.
`During the many years the Nitro Defendants operated Nitro TV, they infringed upon, at a
`minimum, 1,897 Copyrighted Works. See SAC, Ex. A. The Nitro Defendants’ infringement was
`willful—they actively selected the programming they sold and streamed illegally on Nitro TV,
`notified Nitro TV subscribers when channels containing the Copyrighted Works became available,
`solicited feedback from subscribers regarding preferred television programs, and added television
`shows in response to such feedback. Id. ¶ 3. The Nitro Defendants also took steps to actively
`advertise Nitro TV, such as on YouTube channels and through Facebook. See id. ¶¶ 28, 35–37.
`However, at no point did the Nitro Defendants seek to register a Digital Millennium Copyright Act
`(“DMCA”) agent for any Nitro TV website they operated. Id. ¶ 4. Instead, the Nitro Defendants took
`steps to operate anonymously and “hide their tracks,” such as concealing registrant information on
`
`
`3 The SAC describes the “Catch Up” features as follows: “For example, a Nitro TV subscriber using this
`feature on a Monday would be shown a guide of what aired on Sunday and Saturday, and may select and
`watch a program that was telecast at a specific time on a specific channel . . . during the prior two days.” Id. ¶
`51.
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`3
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`the primary Nitro TV website from public access and advising subscribers to use a Virtual Private
`Network (“VPN”).4 Id. ¶¶ 4, 39, 41.
`B. Nitro TV Reseller Network
`In addition to selling subscription packages directly to users, the Nitro Defendants also
`developed a robust “reseller network” by which resellers market and sell the Nitro TV Platforms to
`subscribers all over the world. Id. ¶¶ 5, 54. Nitro TV resellers purchase reseller credits hosted on
`nitroiptv.com or other websites hosted by the Nitro Defendants. Id. ¶ 41. Profits and payments
`generated from the reseller network are managed by Anna Galindo, Martha Galindo, and Osvaldo
`Galindo who “hold and operate critical payment processor and bank accounts through which
`millions of dollars’ worth of Nitro TV reseller credits and subscriptions have been sold.” Id. ¶¶ 6, 40.
`Anna Galindo, Martha Galindo, and Osvaldo Galindo also used these accounts to pay Horsten,
`Orellana, and Firestream for their work in connection with the “promotion, sales, and operation of
`Nitro TV.” Id. ¶ 40
`II.
`Procedural Background
`On April 3, 2020, Plaintiffs filed their initial complaint against Alex Galindo and Does 1–20
`for direct and secondary copyright infringement associated with Nitro TV. ECF No. 1. Soon after,
`Plaintiffs sought—and were awarded— a preliminary injunction to enjoin Alex Galindo’s copyright
`infringement, including his ongoing operation of Nitro TV. ECF Nos. 12 (“Motion for Preliminary
`Injunction”); 34 (“Order Granting Preliminary Injunction”).
`On May 4, 2020, Plaintiffs filed an application for entry of default against Alex Galindo.
`ECF No. 31. The Clerk of Court entered default on May 5, 2020. ECF No. 32. However, on May 19,
`
`
`4 A VPN is a “a private computer network that functions over a public network.” VPN, Merriam-Webster,
`https://www.merriam-webster.com/dictionary/VPN (last accessed Nov. 10, 2022); see also United States v.
`Fisher, No. 217CR00073APGGWF, 2019 WL 3310508, at *3 (D. Nev. Mar. 28, 2019), report and
`recommendation adopted as modified, No. 217CR00073APGGWF, 2019 WL 2419456 (D. Nev. June 10,
`2019) (“A person using a VPN to communicate on the internet can obscure his or her true IP address and
`identity because the communication appears to originate from the VPN’s IP address, rather than the user’s
`actual IP address.”).
`
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`4
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`2020, pursuant the parties’ stipulation, ECF No. 36, the Court set aside the entry of default. ECF No.
`37. Discovery commenced soon after. See Civil Trial Order, ECF No. 43.
`However, Alex Galindo refused to cooperate in discovery and did not produce any
`documents. See ECF Nos. 53, 57. On August 19, 2020, Plaintiffs, suspecting that Alex Galindo had
`engaged in spoliation of evidence, filed a discovery motion requesting an order requiring, among
`other things, the preservation and production of relevant evidence and responses to interrogatories.
`ECF No. 57. Magistrate Judge Gail Standish granted the motion and ordered Alex Galindo to
`propound the requested discovery. See Report & Recommendation on Plaintiffs’ Motion for
`Sanctions Against Alejandro Galindo, ECF No. 209 (“R&R”) at 9–10, report and recommendation
`adopted ECF No. 222. Again, Alex Galindo failed to produce the ordered discovery. 5 R&R at 11–
`12. As a result, Plaintiffs filed a Motion for Terminating Sanctions against Alex Galindo. ECF No.
`112. Judge Standish issued a Report and Recommendation granting the Motion for Terminating
`Sanctions and granting Entry of Judgment on June 30, 2022. See R&R. On August 15, 2022, this
`Court adopted the R&R and ordered Plaintiffs to submit supplemental briefing on the issue of
`statutory damages and the amount of damages sought by Plaintiffs.6 ECF No. 222. Plaintiffs filed the
`requested brief on October 3, 2022. ECF No. 226 (“Supplemental Brief”).
`On August 27, 2020, Plaintiffs filed a First Amended Complaint adding Horsten as a
`defendant. ECF No. 63. On March 23, 2021, Plaintiffs filed the operative SAC adding Defendants
`Anna Galindo, Osvaldo Galindo, Raul Orellana, Firestream, and Martha Galindo.7 ECF No. 112.
`Plaintiffs allege three causes of action pursuant to the Copyright Act, 17 U.S.C. § 101, et seq.: (1)
`direct copyright infringement against Defendants Alex Galindo, Anna Galindo, Martha Galindo,
`Osvaldo Galindo, and Horsten; (2) secondary copyright infringement against all Nitro Defendants;
`and (3) intentional inducement of infringement against all Nitro Defendants. See SAC ¶¶ 64–91.
`Alex Galindo filed an answer on April 13, 2021. ECF No. 126. Despite properly effecting service on
`
`
`5 A detailed summary of Alex Galindo’s discovery violations may be found in the R&R.
`6 The Court addresses Plaintiffs’ statutory damage supplemental briefing in a separate order.
`7 Because Alex, Anna, Martha, and Osvaldo share the same last name, the Court refers to all four defendants
`by their first and last names.
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`each remaining defendant, see ECF Nos. 130, 131, 132, 133, 134, 190, the remaining defendants
`(collectively, the “Defaulted Defendants”) failed to appear in this action.8 Plaintiffs filed Requests
`for the Clerk to enter default judgment on each remaining defendant. ECF Nos. 140, 141, 142, 143,
`148, 191. Each request was granted pursuant to Federal Rule of Civil Procedure 55(a). ECF Nos.
`144, 145, 146, 147, 149, 192. Plaintiffs filed the instant Motion for Default Judgment on October 3,
`2022. ECF No. 227 (“Motion” or “Mot.”). Plaintiffs served the Motion and notice of the Motion
`hearing on all Nitro Defendants and filed proof of service with the Court. See ECF Nos. 229, 235.
`The Court heard oral argument on November 17, 2022. None of the Nitro Defendants appeared at
`the hearing.
`
`
`MOTION FOR DEFAULT JUDGMENT
`By their Motion for Default Judgment, Plaintiffs seek default judgment against the Defaulted
`Defendants and statutory damages in the same amount as sought against Alex Galindo.
`III. Applicable Law
`A. Motion for Default Judgment
`Federal Rule of Civil Procedure 55(b) authorizes a district court to grant default judgment
`after the Clerk of the Court enters default under Rule 55(a). FED. R. CIV. P. 55(b). Local Rule 55-1
`requires the party seeking default judgment to file a declaration establishing: (1) when and against
`what party the default was entered; (2) the pleading on which default was entered; (3) whether the
`defaulting party is an infant or incompetent person, and if so, whether that person is represented by a
`general guardian, committee, conservator, or other like fiduciary who has appeared; (4) that the
`Servicemembers Civil Relief Act does not apply; and (5) that the defaulting party was properly
`served with notice. C.D. Cal. L.R. 55-1.
`Once default has been entered, the well-pled factual allegations in the complaint, except
`those concerning damages, are deemed admitted by the non-responding party. See FED. R. CIV. P.
`
`
`8 It should be noted that Anna Galindo, prior to being named as a defendant in this case, filed a non-party
`motion to quash a subpoena for Woodforest National Bank. ECF No. 85. Anna Galindo did not appear in this
`action upon receipt of the SAC and related summons.
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`8(b)(6); TeleVideo Sys., Inc. v. Heidenthal, 826 F.2d 915, 917–18 (9th Cir. 1987). However, default
`judgment is not automatic upon the Clerk’s entry of default; rather, it is left to the sound discretion
`of the court. Aldabe v. Aldabe, 616 F.2d 1089, 1092–93 (9th Cir. 1980). When deciding whether to
`enter default judgment, courts consider seven factors, commonly known as the Eitel factors:
`
`(1) the possibility of prejudice to the plaintiff; (2) the merits of plaintiff’s substantive
`claim; (3) the sufficiency of the complaint; (4) the sum of money at stake in the action;
`(5) the possibility of a dispute concerning material facts; (6) whether the default was
`due to excusable neglect; and (7) the strong policy underlying the Federal Rules of
`Civil Procedure favoring decisions on the merits.
`
`Eitel v. McCool, 782 F.2d 1470, 1471–72 (9th Cir. 1986).
`“Well-pleaded allegations” require “sufficient factual matter . . . to ‘state a claim for relief
`that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v.
`Twombly, 550 U.S. 544, 570 (2007)). It requires “more than a sheer possibility that a defendant has
`acted unlawfully” but does not require “detailed factual allegations.” Id. Instead, the plaintiff need
`only show more than “threadbare recitals of the elements of a cause of action.” Id. “Determining
`whether a complaint states a plausible claim for relief is ‘a context-specific task that requires the
`reviewing court to draw on its judicial experience and common sense.’” Ebner v. Fresh, Inc., 838
`F.3d 958, 963 (9th Cir. 2016) (quoting Iqbal, 556 U.S. at 679).
`B. Personal Jurisdiction
`When granting a motion for default judgment pursuant to Federal Rule for Civil Procedure
`55, the Ninth Circuit requires that the district court “determine whether it has the power, i.e., the
`jurisdiction, to enter the judgment in the first place.” In re Tuli, 172 F.3d 707, 712 (9th Cir. 1999).
`The purpose of this requirement is to prevent the district court from “entering a default judgment that
`can later be successfully attacked as void.” Id. As such, the district court must consider whether the
`defendant is subject to personal jurisdiction in this forum. See Schwarzenegger v. Fred Martin Motor
`Co., 374 F.3d 797, 801 (9th Cir. 2004). And though the district court has an obligation to determine
`whether jurisdiction is proper, see id., it is the plaintiff’s obligation to establish that the Court has
`personal jurisdiction over a defendant. See Mattel, Inc. v. Greiner & Hausser GmbH, 354 F.3d 857,
`862 (9th Cir. 2003) (holding that the plaintiff “bears the burden of establishing the district court’s
`
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`personal jurisdiction over the Defendants”); FED. R. CIV. P. 8(a)(1) (“A pleading that states a claim
`for relief must contain [. . .] a short and plain statement of the grounds for the court’s
`jurisdiction . . . .”).
`IV. Discussion
`A. The Court has personal jurisdiction over the Nitro Defendants.
`“For a court to exercise personal jurisdiction over a nonresident defendant, that defendant
`must have at least minimum contacts with the relevant forum such that the exercise of jurisdiction
`does not offend traditional notions of fair play and substantial justice.” Schwarzenegger, 374 F.3d at
`801 (quoting Int’l Shoe Co. v. Washington, 326 U.S. 310, 316 (1945) (internal quotation marks
`omitted)). Under the minimum contacts test, jurisdiction can be either general or specific. Id.
`Courts view copyright infringement as a tort claim and thus apply the “purposeful direction”
`minimum contacts test. See Mavrix Photo, Inc. v. Brand Technologies, Inc., 647 F.3d 1218, 1228
`(9th Cir. 2011) (applying the “purposeful direction” analysis to a copyright infringement claim).
`Purposeful direction is analyzed under the Calder “effects” test, which requires the defendant to
`have “(1) committed an intentional act, (2) expressly aimed at the forum state, (3) causing harm that
`the defendant knows is likely to be suffered in the forum state.” Id. (citing Calder v. Jones, 465 U.S.
`783, 789–90 (1984)). The test is composed of three elements: “the defendant allegedly must have (1)
`committed an intentional act, (2) expressly aimed at the forum state, (3) causing harm that the
`defendant knows is likely to be suffered in the forum state.” Mavrix Photo, 647 F.3d at 1228 (citing
`Brayton Purcell LLP v. Recordon & Recordon, 606 F.3d 1124, 1128 (9th Cir. 2010), abrogation
`recognized by Axiom Foods, Inc. v. Acerchem Int’l, Inc., 874 F.3d 1064 (9th Cir. 2017)).
`The Court finds that Plaintiffs have satisfied each element of the Calder effects test. The first
`factor—intentional act—is satisfied as copyright infringement is generally considered to be an
`intentional act. See, e.g., Mavrix Photo, 647 F.3d at 1229 (finding that defendant had “committed an
`intentional act” by “allegedly infringing” on plaintiff’s copyright-protected materials.).
` Next, the second factor—whether the Nitro Defendants’ conduct was “expressly aimed” at
`California—is satisfied, as Plaintiffs have alleged that the Nitro Defendants marketed Nitro TV
`subscriptions in California and hosted California-specific programming on the Platform.
`
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`Specifically, the SAC alleges that the Nitro Defendants “have marketed and sold Nitro TV
`subscriptions to end users in California as well as TekkHosting Nitro Reseller Credits (which are
`exchanged for Nitro TV subscriber credentials) to resellers in California [and] do business with
`California-based companies,” and that the alleged copyright infringement “caused harm to Plaintiffs
`in California.” SAC ¶¶ 9–12. The SAC also alleges that the Nitro TV Platforms contain “a collection
`of [California-specific] broadcast television networks” such as “Los Angeles ABC, CBS, CW, NBC
`and FOX” affiliates. Id. ¶ 50; see also Mavrix Photo, 647 F.3d 1230 (finding that defendant
`expressly aimed its business activity to the forum state because the defendant’s website contained
`advertisements targeting California residents, indicating “that [defendant] kn[ew]—either actively or
`constructively—about its California user base, and that it exploit[ed] that base for commercial
`gain”).
`
` The third and final element—foreseeability of harm—is also satisfied. The Ninth Circuit has
`held that “a corporation can suffer [jurisdictionally sufficient] economic harm both where the bad
`acts occurred and where the corporation has its principal place of business.” Dole Food Co., Inc. v.
`Watts, 303 F.3d 1104, 1113 (9th Cir. 2002). Plaintiffs argue that “Defendants reasonably expected or
`should have reasonably expected their acts to cause harm in California because Plaintiffs either
`maintain headquarters or offices in California, and it is the location of a significant portion of
`Plaintiffs’ production and distribution operations.” SAC ¶ 12; see also id. ¶¶ 14–21 (listing
`Plaintiffs’ headquarters and principal places of business). As seven of the eight plaintiffs are
`headquartered and have their principal place of business in California, the Court finds that it was
`foreseeable that Plaintiffs would have suffered harm in the forum state. Dole Food Co., 303 F.3d at
`1114 (“[W]hen a forum in which a plaintiff corporation has its principal place of business is in the
`same forum toward which defendants expressly aim their acts, the ‘effects’ test permits that forum to
`exercise personal jurisdiction.”).
`The remaining plaintiff, Amazon, is described as “incorporated under the laws of the State of
`Delaware with its principal place of business in Seattle, Washington.” SAC ¶ 15. This, however,
`does not negatively impact a finding of foreseeability of harm. Indeed, in Mavrix Photo, Inc. v.
`Brand Technologies, Inc., the Ninth Circuit held that “jurisdictionally significant harm” extends to a
`
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`defendant’s actions that “destroy[] . . . California-based value.” 647 F.3d at 1231–32. The plaintiff in
`Mavrix Photo was a Florida corporation with its principal place of business in Miami. Id. at 1221.
`Regardless, the Ninth Circuit found that as the defendant republished photos under plaintiff’s
`exclusive ownership, “it was foreseeable that . . . economic loss would be inflicted not only in
`Florida . . . but also in California [as a] substantial part of the photos’ value was based on the fact
`that a significant number of Californians would have bought publications . . . in order to see the
`photos.” Id. at 1231–32. Similar reasoning applies here. Plaintiffs contend that Amazon “owns or
`controls the copyrights or exclusive rights in the content that it or its affiliates produce or distribute.”
`SAC ¶ 15. As was found in Mavrix Photo, the Court finds that it was foreseeable that Amazon
`would suffer economic loss in California as “a significant number of Californians would have
`bought” Amazon’s content but-for the Nitro Defendants’ conduct.
` Accordingly, the Court finds that it has personal jurisdiction over the Nitro Defendants.
`B. Plaintiffs have satisfied the procedural requirements of Local Rule 55-1.
`The Clerk of the Court entered default against the Defaulted Defendants on May 6, 2021,
`May 14, 2021, and November 15, 2021. ECF Nos. 144 (Entry of Default Against Raul Orellana);
`145 (Entry of Default Against Firestream LLC); 146 (Entry of Default Against Anna Galindo); 147
`(Entry of Default Against Osvaldo Galindo); 149 (Entry of Default Against Richard Horsten); 192
`(Entry of Default Against Martha Galindo). The Defaulted Defendants have not responded to the
`Complaint or otherwise defended the action. Pursuant to Local Rule 55-1, the Motion states that the
`Defaulted Defendants are not minors, infants, or otherwise incompetent persons, nor subject to the
`Servicemembers Civil Relief Act. Mot. at 6. Finally, Plaintiffs served the Defaulted Defendants with
`a copy of this Motion. Proof of Service, ECF No. 229; Declaration of Julie A. Shepard, ECF No.
`227-1 (“Shepard Decl.”) ¶ 2. As such, the Court finds Waters has complied with the procedural
`requirements of Local Rule 55-1.
`C. The Eitel factors weigh in favor of granting default judgment.
`i. Plaintiffs would suffer prejudice without a default judgment.
`The first Eitel factor requires the Court to consider the harm to a plaintiff in the absence of
`default judgment. See Eitel, 782 F.2d at 1471. Plaintiffs argue that by failing to appear in this action,
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`the Defaulted Defendants have likely “left [Plaintiffs] . . . without any recourse or any ability to
`recoup damages absent entry of a default judgment.” Mot. at 7. Moreover, given the nature and
`extent of the evasive conduct previously employed by the Nitro Defendants, see infra Section
`IV.C.ii.2.ii.1, it is likely that without further Court action, the Nitro Defendants may continue the
`infringing conduct. And while Plaintiffs acknowledge that Alex Galindo has appeared in this action
`and that they have obtained terminating sanctions against him, see ECF No. 222, it appears that
`Plaintiffs believe that these sanctions will be insufficient to provide Plaintiffs with adequate relief.
`See id. 7–8. The Defaulted Defendants failed to appear to contest this allegation.
`Taking the well-pled factual allegations as true—as this Court must, given that the Clerk has
`entered default—Plaintiffs will be prejudiced if the Court does not grant default judgment.
`Accordingly, the Court finds that this factor weighs in favor of granting default judgment.
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`ii. The Court finds Plaintiffs’ SAC sufficient and the claims alleged therein
`meritorious.9
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`The second and third Eitel factors consider the substantive merits and sufficiency of the
`complaint. See Eitel, 782 F.2d at 1471. Notwithstanding the entry of default, the Court must still
`determine whether the facts alleged give rise to a legitimate cause of action because “claims [that]
`are legally insufficient . . . are not established by default.” Cripps v. Life Ins. Co. of N. Am., 980 F.2d
`1261, 1267 (9th Cir. 1992). Plaintiffs maintain that they have sufficiently pleaded the Copyright Act
`claims set forth in the SAC. Mot. at 8.
`To establish a claim for direct copyright infringement, Plaintiffs must establish (1) ownership
`of a valid copyright of the allegedly infringed materials, and (2) “demonstrate that the alleged
`infringers violate at least one exclusive right granted to copyright holders 17 U.S.C. § 106.” A&M
`Records, Inc. v. Napster, Inc., 239 F.3d 1004, 1013 (9th Cir. 2001). Upon review of the Motion and
`the SAC, the Court finds that Plaintiffs have satisfied both requirements.
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`9 Plaintiffs cite to a number of district court cases to support their arguments. However, the Court reminds
`Plaintiffs that trial court decisions are not binding on this Court. See Hart v. Massanari, 266 F.3d 1155, 1174
`(9th Cir. 2001) (“[T]he binding authority principle applies only to appellate decisions, and not to trial court
`decisions . . . .”).
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`1. Plaintiffs have sufficiently pleaded evidence of ownership of a valid copyright.
`First, Plaintiffs have presented detailed evidence indicating that they own and control all
`1,897 Copyrighted Works. To bring a copyright suit, a plaintiff must show that she has registered the
`works at issue with the U.S. Copyright Office. See 17 U.S.C. § 411(a); Fourth Est. Pub. Benefit
`Corp. v. WallStreet.com, LLC, 139 S. Ct. 881, 886 (2019) (citing 17 U.S.C. § 411(a)). “A copyright
`registration is ‘prima facie evidence of the validity of the copyright and the facts stated in the
`certificate.’” United Fabrics Int’l, Inc. v. C&J Wear, Inc., 630 F.3d 1255, 1257 (9th Cir. 2011)
`(quoting 17 U.S.C. § 410(c)).
`Plaintiffs have provided a “representative list of titles, along with their [federal] registration
`numbers, as to which [the Nitro] Defendants have directly and secondarily infringed.” SAC ¶ 22; id.,
`Ex. A. Therefore, Plaintiffs are the presumed owners of the Copyrighted Works, and this first
`element is met.
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`2. Plaintiffs have sufficiently demonstrated that the Defaulted Defendants violated at
`least one exclusive right granted to copyright holders.
`Plaintiffs proceed under two theories in support of the second element—whether the
`Defaulted Defendants violated at least one exclusive right granted to copyright holders. A&M
`Records, Inc., 239 F.3d at 1013. First, that Horsten, in collaboration with Alex Galindo, directly
`infringed on “Plaintiffs’ exclusive rights to publicly perform their works and reproduce their works.”
`Mot. at 9. Second, that all Nitro Defendants are liable under both theories of secondary liability—
`contributory infringement and inducement. Id. at 12. The Court evaluates both theories in turn.
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`i. Plaintiffs have established that Horsten and Galindo directly
`infringed on Plaintiffs’ exclusive rights to publicly perform and
`reproduce the Works.10
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`Section 106 of the Copyright Act enumerates the specific rights exclusive to copyright
`owners. Among these rights is the right “to perform the copyrighted work publicly.” 17 U.S.C. §
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`10 Although at various points in discussing direct infringement Plaintiffs refer to “the Defendants,” the Court
`understands that Plaintiffs are contending that only Defendants Horsten and Galindo are liable for direct
`infringement, and the other Nitro Defendants are only secondarily liable—for contributory infringement and
`inducement.
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`106(4). (“[I]n the case of literary, musical, dramatic, and choreographic works, pantomimes, and
`motion pictures and other audiovisual works, to perform the copyrighted work publicly.”). While the
`law indicates that there are two ways to “perform a work publicly,”11 Plaintiffs proceed under the
`second definition, that is, “to transmit or otherwise communicate a performance or display of the
`work . . . to the public, by means of any device or process, whether the members of the public
`capable of receiving the performance or display receive it in the same place or in the separate places
`and at the same time or at different times.” 17 U.S.C. § 101. Streaming a copyrighted work over the
`Internet qualifies as public performance. See, e.g., William F. Patry, PATRY ON COPYRIGHT § 14:2
`(Sept. 2022) (“Transmission of a copy of a work stored on a computer server to members of the
`public is a public display, even if to only one person, because people in different locations can also
`receive it.”); Am. Broad. Cos., Inc. v. Aereo, Inc., 573 U.S. 431, 445–48 (2014) (finding that a
`provider that “streams . . . programs over the Internet to . . . subscribers” qualifies as a public
`performance under the meaning of the statute).
`Plaintiffs allege that Ho