Spoliation Inference Further Supports Court’s Finding that Defendant Infringed Motion Picture Copyrights

Paramount Pictures Corp. v. Davis, 2006 WL 2092581 (E.D. Pa. July 26, 2006)

In an earlier opinion (Paramount Pictures Corp. v. Davis, 234 F.R.D. 102 (E.D. Pa. 2005), summarized here), the court denied summary judgment but concluded that an adverse inference sanction was warranted based upon defendant’s spoliation of evidence. In this opinion, the court sets out its findings of fact and conclusions of law from the subsequent bench trial, and decides the case in favor of Paramount.

Paramount filed a John Doe lawsuit on January 21, 2005 against an unnamed infringer. Paramount simultaneously filed a motion to serve discovery prior to the Rule 26(f) conference seeking leave from the court to serve Comcast with a subpoena for the infringer’s true identity by use of the IP address and date and time of infringement. The motion was granted, and on March 3, 2005, Paramount served Comcast with the subpoena. Before responding to the subpoena, Comcast informed the infringer (its subscriber) in writing on March 9, 2005 of the lawsuit against him and its intention to respond to the subpoena by revealing his identity. This letter included a copy of the court’s March 1, 2005 Order which allowed Paramount to seek the identity of the infringer. The letter from Comcast to defendant was clear that Paramount had filed a lawsuit against an individual, that Paramount was seeking the identity of that individual, and that Comcast was about to disclose defendant’s identity to Paramount as that individual.

At trial, Paramount’s computer forensics expert testified that his analysis of defendant’s computer revealed that, on March 25, 2005, defendant wiped his hard drive clean of all data and then reinstalled an operating system. He also testified that defendant had taken further steps beyond reformatting his computer to eliminate any and all data from the computer’s “unallocated space,” which could have been recovered via forensic means. The effect of defendant’s wiping the hard drive clean of all data was to make it impossible to determine whether the motion picture at issue, or the eDonkey software allegedly used to copy and share it, was on the computer prior to March 25, 2005. The expert further testified that, although it was possible that he could have recovered the deleted information via another forensic means, such a method was prohibitively expensive outside of the government’s antiterrorism efforts. Defendant claimed that he wiped his hard drive clean in preparation for selling it to a third party.

The court stated it did not need to rely upon the spoliation inference to find in favor of Paramount, but that it did provide further support for the decision. The court awarded $50,000 in statutory damages under 17 U.S.C. § 504(c) and entered a permanent injunction that enjoined defendant “from directly or indirectly infringing plaintiff, Paramount Picture Corp.’s, rights in the motion picture ‘Lemony Snicket’s: A Series of Unfortunate Events,’ and any motion picture, whether now in existence or later created, that is owned or controlled by Paramount, including without limitation by using the internet to reproduce or copy any of Paramount’s motion pictures . . .”