Broadcast Music, Inc. et al. v. 11 Exchange Street LLC d/b/a The Steel Pub et al. (19-cv-40136).

After The Steel Pub failed to answer the complaint and did not respond to BMI’s motion for default judgment in this copyright infringement case, Magistrate Judge Hennessy directed the clerk to assign the case to a district judge and recommended allowing the motion for default in all aspects other than  the request for injunctive relief.  He noted that, prior to entering default judgment, the court must examine the complaint, taking all well-pled factual allegations as true, to determine whether it pleads a legitimate, legal cause of action.  He determined that infringement was adequately pled, and that willfulness was demonstrated by the defendants’ actions in continuing to allow copyrighted music to be performed after receiving more than twenty communications from BMI explaining the infringement and the need to take a blanket license offered by BMI.  With respect to damages, Judge Hennessy noted that the requested statutory damage number, $7500 per violation for a total of $30,000, was about four times the amount BMI would have received through licensing fees, had the pub taken a license.  He found this to be overly punitive, and recommended an award totaling $15,000.  He recommended awarding the full $3212 in attorneys fees, noting that BMI’s attorneys had prudently not engaged in further litigation (such as discovery) while default was pending.  He further recommended awarding the full $547 in costs, primarily for filing and process server fees.  He recommended against the entry of a permanent injunction, however, noting that BMI had not pled continued infringement of the four songs at issue, nor that the pub would allow the performance of these songs in the future.

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