Case 2:14-cv-01819-RAJ Document 51 Filed 01/29/16 Page 1 of 3

Honorable Richard A. Jones

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON AT SEATTLE
DALLAS BUYERS CLUB, LLC,
Plaintiff,
v.

Civil Action No. 14-cv-1819RAJ
OBJECTION TO REQUEST TO SUBMIT
RESPONSE TO MOTION FOR DEFAULT
JUDGMENT

ERIC NYDAM, an individual; and
DOE 6,
Defendants.
Plaintiff respectfully objects to Attorney Whitaker’s request to submit a response in the
Defendant Nydam default judgment proceeding. As admitted by Attorney Whitaker, neither he nor his
firm represent or have had any involvement with the defaulted defendant. It does not appear that Attorney
Whitaker is properly seeking to intervene pursuant to FRCP 24(b), and has provided no legal authority
supporting the proposition that a third party can or should be allowed to make submissions in a default
judgment proceeding under these circumstances. To the contrary, further filings made by Attorney
Whitaker could potentially prejudice the defaulted defendant through increased costs and fees should his
filing mandate a response; third party interference that might prolong or multiply these proceedings
should not be tolerated
Moreover, Attorney’s Whitaker’s statement that Plaintiff’s default judgment motion submission
is “somewhat slanted with respect to the true state of the law regarding copyright actions like this one” is
presumptuous as well as simply incorrect. Plaintiff’s submission is supported by legal authority and

OBJECTION TO REQUEST TO SUBMIT
RESPONSE TO MOTION FOR DEFAULT
JUDGMENT - 1
Civil Action No. 14-cv-1819RAJ
INIP-6-0010P18 RESP

Case 2:14-cv-01819-RAJ Document 51 Filed 01/29/16 Page 2 of 3

substantiated evidence. While Attorney Whitaker may disagree with such authority and evidence, and
may even be able to provide contrary examples if given the chance, such does not support his sweeping
statement challenging Plaintiff’s cited authority and evidence, nor should it give him license make
arguments in this case.
Finally, while true that The Department of Commerce Internet Policy Task Force just released
its

White

Paper

on

Remixes,

First

Sale,

and

Statutory

Damages

(available

at

http://www.uspto.gov/sites/default/files/documents/copyrightwhitepaper.pdf), it is not law. It proposes
new language in Section 504(c) including nine nonexclusive factors to be considered by courts in
determining the appropriate amount of statutory damages, but noteworthy is the fact that the White Paper
does not recommend reducing statutory damages in these cases. (White Paper, pp. 94, 95) To the
contrary, the White Paper acknowledges the important rights of the copyright owners in these cases and
states:
With respect to file-sharing, statutory damages must take into account not merely the
defendant’s personal use, but his or her acts in uploading and distributing copies to
potentially numerous recipients. And while statutory damage awards of $150,000 per
work are rare, there may be cases, including in the context addressed in these
proceedings, where such awards are justified due to the need to deter and punish willful
infringement.
Id., p. 94.
RESPECTFULLY SUBMITTED this 29th day of January, 2016.
s/David A. Lowe, WSBA No. 24,453
Lowe@LoweGrahamJones.com
LOWE GRAHAM JONESPLLC
701 Fifth Avenue, Suite 4800
Seattle, WA 98104
T: 206.381.3300
F: 206.381.3301
Attorneys for Plaintiff Dallas Buyers Club, LLC

OBJECTION TO REQUEST TO SUBMIT
RESPONSE TO MOTION FOR DEFAULT
JUDGMENT - 2
Civil Action No. 14-cv-1819RAJ
INIP-6-0010P18 RESP

Case 2:14-cv-01819-RAJ Document 51 Filed 01/29/16 Page 3 of 3

CERTIFICATE OF SERVICE
The undersigned hereby certifies that a true and correct copy of the
foregoing document has been served to all counsel or parties of
record who are deemed to have consented to electronic service via
the Court’s CM/ECF system.
s/ David A. Lowe

OBJECTION TO REQUEST TO SUBMIT
RESPONSE TO MOTION FOR DEFAULT
JUDGMENT - 3
Civil Action No. 14-cv-1819RAJ
INIP-6-0010P18 RESP