G:\BobX3\2011-12\Fraserside. set aside deafult ... - Letters Blogatory

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not advertise in Iowa, and no Youngtek officer or director has ever visited Iowa. Wijnveen Aff. at 5. Case 3:11-cv-03005-MWB Document 20 Filed 07/12/11 Page 18 of 20 To establish jurisdiction, a defendant must have sufficient contacts with the United States as a whole to satisfy the due process requirements of the Fifth Amendment. This test is used to ensure that the exercise of jurisdiction comports with “traditional notions of fair play and substantial justice.” International Shoe v. Washington, 326 U.S. 310, 316 (1945). This determination includes: the burden on the defendant to litigate in the forum, the state’s interest in settling the dispute, the plaintiff’s interest in obtaining convenient and effective relief, the plaintiff’s burden to litigate elsewhere, and the interstate judicial system’s interest in efficient resolution of disputes. Asahi Metal Industry Co. v. Superior Court of California, 480 U.S. 102, 105 (1987). Although Fraserside hotly disputes the merit of Youngtek’s proffered defense, if one believes Youngtek’s assertions, it has a potentially valid defense to Fraserside’s lawsuit, which would be contrary to the result achieved by the default entry. Youngtek further argues it has a meritorious affirmative defense under the Digital Millennium Copyright Act’s (“DMCA”) “safe harbor” provision found in 17 U.S.C. § 512(c). Youngtek maintains it has maintained a DMCA agent for service of takedown notices and has responded expeditiously to all properly submitted takedown notices. Youngtek contends Fraserside’s complaint fails to assert that it ever issued a takedown notice to Youngtek. Youngtek argues that absent those allegations, Fraserside’s complaint fails as a matter of law. Fraserside counters that Youngtek cannot claim safe harbor protection under § 512(c) because it did not have a DMCA agent listed with the United States Copyright Office. Section 512(c) precludes imposing monetary liability on a “service provider . . . for infringement of copyright by reason of the storage at the direction of a user of material that 18
Case 3:11-cv-03005-MWB Document 20 Filed 07/12/11 Page 19 of 20 resides on a system or network controlled or operated by or for the service provider.” 17 U.S.C. § 512(c)(1). This protection is available only if the service provider satisfies a number of statutory requirements. For example, the service provider must not have actual knowledge that the material or an activity using the material on the relevant system is infringing, must not receive a direct financial benefit from infringing activity, and must expeditiously remove or disable access to material if it is notified that the material is infringing or is the subject of infringing activity. 17 U.S.C. § 512(c)(1)(A)-(C). However, the limitations on liability established in § 512(c) “apply to a service provider only if the service provider has designated an agent to receive notifications of claimed infringement. . . .” 17 U.S.C. § 512(c)(2); see In re Aimster Copyright Litig., 252 F. Supp.2d 634, 661 n. 22 (N.D. Ill. 2002). While Fraserside again contests the merit of Youngtek’s proffered defense, if one believes Youngtek’s assertions, then it has, again, asserted another potentially valid defense to Fraserside’s lawsuit. Thus, I conclude Youngtek has meritorious defenses to Fraserside’s claims. Accordingly, this factor weighs heavily in favor of setting aside the default entry. iii. Whether Fraserside would be prejudiced Finally, I must consider whether Fraserside would be prejudiced by setting aside the default entry. “[D]elay alone, or the fact the defaulting party would be permitted to defend on the merits, are insufficient grounds to establish the requisite prejudice to the plaintiff.” Stephenson, 524 F.3d at 915 (citing Johnson, 140 F.3d at 785). “Setting aside a default must prejudice [the] plaintiff in a more concrete way, such as loss of evidence, increased difficulties in discovery, or greater opportunities for fraud and collusion.” Id. (citation and quotation marks omitted). Fraserside does not argue that it would be prejudiced in any concrete way by setting aside the default entry. Thus, I conclude that Fraserside would not be prejudiced by my setting aside the default entry. 19
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Page 5 and 6: FED. R. CIV. P. 55. a defendant who
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