Wavve Americas Incorporated v. Unknown Party et al

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WO
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ARIZONA
Wavve Americas Incorporated,
Plaintiff,
v.
Unknown Party, et al.,
Defendants.
No. CV-24-02667-PHX-KML
ORDER
Plaintiff Wavve Americas Inc. seeks default judgment against defendants, the
registrants of various domain names. (Doc. 59.) Wavve alleges defendants are using the
domain names unlawfully to distribute “numerous Korea-originating television
programming and feature films.” (Doc. 59 at 2.) The court must consider seven factors
when deciding whether to enter default judgment. Eitel v. McCool, 782 F.2d 1470, 1471-
72 (9th Cir. 1986). The seven factors are:
(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.
Id. These factors establish default judgment is appropriate.
1. Possibility of Prejudice
The first factor regarding the prejudice to Wavve weighs in favor of default
judgment because if “default judgment is not granted, [Wavve] will likely be without other
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recourse for recovery.” PepsiCo, Inc. v. Cal. Sec. Cans, 238 F. Supp. 2d 1172, 1177 (C.D.
Cal. 2002).
2. Merits of the Claims and Sufficiency of the Complaint
The second and third factors require assessing the merits of Wavve’s claims and the
sufficiency of its complaint. These factors “are often analyzed together and require courts
to consider whether a plaintiff has state[d] a claim on which [it] may recover.” Vietnam
Reform Party v. Viet Tan - Vietnam Reform Party, 416 F. Supp. 3d 948, 962 (N.D. Cal.
2019) (simplified).
The operative complaint alleges Wavve operates a “media service that distributes
(i.e., streams) media content directly to viewers via the Internet.” (Doc. 42 at 10.) Wavve
“licenses original programming that first airs in Korea for distribution in the United States
and elsewhere.” (Doc. 42 at 10.) These licenses are exclusive. (Doc. 42 at 11.) Wavve
provides some programming “for free with ads, from which [it] generates revenue.” (Doc.
42 at 11.) Wavve also offers a subscription service. (Doc. 42 at 10.)
Wavve names as defendants individuals who have been identified as the registrants
of numerous domain names. (Doc. 42 at 2-3.) Defendants operate websites at those domain
names where visitors “can select from a wide variety of media content,” including content
that was “exclusively licensed” to Wavve. (Doc. 42 at 12.) One defendant is also linked to
the creation of the “DRAMACOOL App,” that can be used “to access a vast quantity of
infringing content.” (Doc. 42 at 16.)
Wavve asserts two claims. First, copyright infringement against all defendants
based on defendants “unlawfully creat[ing] copies” of certain copyrighted material and
distributing that material in the United States. (Doc. 42 at 25.) Second, contributory
copyright infringement against one defendant, Tommy USA. That defendant is the
registrant of <asianwiki.co>. The website at that domain name contains a hyperlink that
“directly leads visitor to infringing copies” of the copyrighted material. (Doc. 42 at 26.)
“A copyright plaintiff must prove (1) ownership of the copyright; and (2)
infringement—that the defendant copied protected elements of the plaintiff’s work.”
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Ambrosetti v. Oregon Cath. Press, 151 F.4th 1211, 1218 (9th Cir. 2025) (simplified). As
the exclusive licensee for distribution in the United States, Wavve has sufficient ownership
interest to sue for infringement occurring in the United States. Righthaven LLC v. Hoehn,
716 F.3d 1166, 1170 (9th Cir. 2013) (“if a copyright owner grants an exclusive license of
particular rights, only the exclusive licensee and not the original owner can sue for
infringement of those rights”). And defendants have infringed upon Wavve’s exclusive
rights “by doing exactly what [Wavve] does,” i.e., distributing copies of copyrighted
material. (Doc. 59 at 11.) Wavve has stated a strong claim of copyright infringement.
A claim for contributory infringement requires allegations a defendant “(1) has
knowledge of a third party’s infringing activity, and (2) induces, causes, or materially
contributes to the infringing conduct.” Perfect 10, Inc. v. Visa Int’l Serv. Ass’n, 494 F.3d
788, 795 (9th Cir. 2007) (simplified). Tommy USA operates <asianwiki.co> which
provides links to infringing content available at other sites. Tommy USA updates
<asianwiki.co> to allow continued access to infringing content when certain domain names
are shut down. In other words, Tommy USA materially contributes to the infringing
conduct of unauthorized distribution. Wavve has stated a claim for contributory
infringement against Tommy USA. Wavve’s allegations establish the second and third
default judgment factors support default judgment.
3. Amount in Controversy
The fourth default judgment factor “requires that the court assess whether the
recovery sought is proportional to the harm caused by defendant’s conduct.” Landstar
Ranger, Inc. v. Parth Enterprises, Inc., 725 F. Supp. 2d 916, 921 (C.D. Cal. 2010). Wavve
does not seek monetary damages. (Doc. 59 at 10.) Wavve only seeks injunctive relief in
the form of prohibiting defendants from continuing their infringing activities and
transferring ownership of domain names to Wavve. This relief is targeted to remedy the
harms caused by defendants’ conduct, so this factor supports entry of default judgment.
4. Dispute Over Material Facts
The fifth factor is whether there are any disputes over material facts. Defendants’
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failure to participate means there is no indication of such disputes. This factor weighs in
favor of default judgment.
5. Excusable Neglect
There is no evidence defendants’ failure to participate is the result of excusable
neglect. See Shanghai Automation Instrument Co. v. Kuei, 194 F. Supp. 2d 995, 1005 (N.D.
Cal. 2001) (defendants’ failure to respond to complaint could not “be attributable to
excusable neglect” because “[a]ll were properly served with the Complaint, the notice of
entry of default, as well as the papers in support of the instant motion.”). This factor
supports default judgment.
6. Policy Favoring Decisions on the Merits
The seventh factor recognizes a preference for resolving matters on their merits.
This factor, as always, weighs against entry of default judgment. “However, the mere
existence of Fed.R.Civ.P. 55(b) indicates that this preference, standing alone, is not
dispositive.” PepsiCo, 238 F. Supp. 2d at 1177 (simplifed).
7. Default Judgment is Merited
Viewed together, the factors support entry of default judgment. The only remaining
issue is the scope of relief.
8. Injunctive Relief
Although Wavve has established defendants are engaged in ongoing infringing
activities, that does not automatically entitle it to a permanent injunction. eBay Inc. v.
MercExchange, L.L.C., 547 U.S. 388, 393 (2006). Wavve is entitled to an injunction only
upon showing “(1) that it has suffered an irreparable 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 the plaintiff and defendant, a remedy in
equity is warranted; and (4) that the public interest would not be disserved by a permanent
injunction.” Id. at 391.
Defendants’ ongoing distribution of copyrighted materials deprives Wavve of its
“ability to control the use and transmission of their Copyrighted Works, thereby causing
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irreparable injury to [Wavve].” Warner Bros. Ent. Inc. v. WTV Sys., Inc., 824 F. Supp. 2d
1003, 1012–13 (C.D. Cal. 2011). The infringement also deprives Wavve of revenue and
risks Wavve’s “future success.” (Doc. 59 at 17.) Such “economic harm is not generally
considered irreparable.” E. Bay Sanctuary Covenant v. Biden, 993 F.3d 640, 677 (9th Cir.
2021). But “[t]he threat of being driven out of business is sufficient to establish irreparable
harm.” hiQ Labs, Inc. v. LinkedIn Corp., 31 F.4th 1180, 1188 (9th Cir. 2022). In addition,
defendants have ignored this litigation, meaning it is likely “an award of monetary damages
will be meaningless, and [Wavve] will have no substantive relief” because “it will be
impossible to collect an award for past and/or future infringements perpetrated by a
defendant[s].” Metro-Goldwyn-Mayer Studios, Inc. v. Grokster, Ltd., 518 F. Supp. 2d
1197, 1217 (C.D. Cal. 2007). Requiring defendants stop their infringing activities will not
cause any legitimate hardship. And the public interest is served in enforcing copyright law.
A permanent injunction prohibiting defendants from continuing their activities is
appropriate.
Wavve also requests the injunction require transfer ownership of the domain names
to Wavve. It is clear a domain name can be transferred when a plaintiff prevails on certain
trademark claims, see 15 U.S.C. § 1125(d)(1)(C), but no trademark claims are asserted
here. The current statute regarding appropriate relief for copyright infringement may not
allow a court to order the transfer of domain names. But see 17 U.S.C. § 503(b) (allowing
for “destruction or other reasonable disposition” of “articles” used to produce infringing
copies). But defendants have not appeared here to challenge the remedy, and “a number of
courts have found that a transfer of domain names is an appropriate remedy to prevent
further infringement of a copyright holder’s rights.” McGraw-Hill Glob. Educ. Holdings,
LLC v. Khan, 323 F. Supp. 3d 488, 500 (S.D.N.Y. 2018). Ordering transfer of domain
names can be appropriate if the infringement is ongoing and there are indications the
defendant will not comply with an injunction. See id. at 501; Philip Morris USA, Inc. v.
Otamedia Ltd., 331 F. Supp. 2d 228, 246 (S.D.N.Y. 2004). Here, defendants concealed
their identities, ignored this litigation, and have an “established practice of evading
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copyright enforcement by moving their operation to new domains, even after having a
judgment rendered against them.” (Doc. 42 at 13.) Wavve is entitled to an order transferring
the domain names.
IT IS ORDERED the Motion for Default Judgment (Doc. 59) is GRANTED.
IT IS FURTHER ORDERED each of the defendants, and all of their officers,
agents, servants and employees, and all those persons or entities acting in active concert or
participation therewith, and all persons and entities who receive actual notice of this order,
are immediately and permanently enjoined from engaging in any of the following activities
by means of any of <dramanice.la>, <runasian.net>, <watchasia.to>, <asianc.sh>,
<asianwiki.co>, <dramacool.bg>, <dramacool.com.tr>, <dramacool.com.so>,
<dramacool.com.vc>, <dramacool9.co>, <dramacool.tr>, <dramacool.co.ba>,
<dramacool.ba>, <dramacool.sr>, <dramacooltv.cz>, and <dramacooli.cz> (“Subject
Domains”), or otherwise:
i. storing, reproducing, displaying, or distributing any of the Copyrighted
Works that are exclusively licensed to wA for distribution in the United
States, a sample of which is attached as Exhibit F to Plaintiff’s First Amended
Complaint (Doc. 42) filed on March 27, 2025;
ii. transmitting, retransmitting, assisting in the transmission of, requesting
transmission of, streaming, hosting or providing unauthorized access to, or
otherwise publicly performing, directly or indirectly, by means of any device
or process, any of the Copyrighted Works;
iii. selling, advertising, marketing, or promoting any of the Copyrighted Works;
iv. creating, operating, maintaining, or managing any website in support of the
activities described above;
v. registering, owning, receiving, or transferring any domain name in support
of the activities described above; and
vi. creating or providing assistance to others who wish to engage in the activities
described above.
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IT IS FURTHER ORDERED defendants, and all of their officers, agents, servants
and employees, and all those persons or entities acting in active concert or participation
therewith, and all persons and entities who receive actual notice of this order, are further
immediately and permanently enjoined from engaging in any activities having the object
or effect of fostering infringement of the Copyrighted Works by means of any of the
Subject Domains, or otherwise, including without limitation engaging in any of the
following activities:
i. advertising or promoting unauthorized access to or the availability of the
Copyrighted Works;
ii. encouraging or soliciting others to transmit or reproduce the Copyrighted
Works;
iii. encouraging or soliciting others to upload, post or index any files that
constitute, correspond, point or lead to any of the Copyrighted Works;
iv. encouraging or soliciting others to offer transmission of the Copyrighted
Works; and
v. providing technical assistance, support services or servers to others engaged
in infringement of, or seeking to infringe, the Copyrighted Works.
IT IS FURTHER ORDERED service of this default judgment and permanent
injunction upon defendants via their respective email addresses as identified in plaintiff’s
motion is deemed sufficient notice to defendants under Fed. R. Civ. P. 65. It shall not be
necessary for defendants to sign any form of acknowledgement of service.
IT IS FURTHER ORDERED plaintiff is entitled to ownership of each of the
Subject Domains, and that defendants, and all those persons or entities acting in active
concert or participation therewith, and all persons and entities who receive actual notice of
this order, shall transfer their respective Subject Domains to an account under plaintiff’s
control, which efforts shall be done at plaintiff’s reasonable expense.
IT IS FURTHER ORDERED any violation of this permanent injunction shall
expose defendants, and all other persons bound by this permanent injunction, to all
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applicable penalties, including contempt of Court.
IT IS FURTHER ORDERED the Clerk of Court shall enter judgment in favor of
plaintiff and close this case.
Dated this 6th day of April, 2026.
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