Monday, April 11, 2011

Statutory Damages Under The Copyright Act - Lessons From LimeWire

Arista Records - Throwing a Funeral Party Over Lime Wire?

Arista Records LLC et a. v. Lime Group LLC (Lime Wire) (06 CV 5936) has recently spawned a series of decisions of interest for those who follow the Copyright Act's provisions on statutory damages.   More posts on statutory damages here.

Right now the First Circuit is deciding the Tenenbaum case which includes a challenge to an award of statutory damages against a student downloader.  More on Tenenbaum here and here.

But in the Lime Wire case (background here), Judge Kimba Wood granted summary judgment on May 11, 2010 finding Lime Wire liable as a secondary infringer for running a service that facilitates peer-to-peer file sharing, full decision here.   An interesting aspect of the case is that Lime Wire's founder was held to be personally liable.

But following Judge Wood's grant of summary judgment, a recent flurry of decisions relating to the Copyright Act's statutory damages provisions, 17 USC 504(c) have emerged.

In Chapter 17 of Copyright Litigation Handbook (West 2010), I cover issues relating to damages under the Copyright Act.   Chapter 18 covers the related issues of costs and attorneys fees.

On March 10, 2011, Judge Wood considered the issue of whether Lime Wire, a secondary infringer, was liable for multiple awards of statutory damages for each copyrighted work it permitted to be infringed, or only one.   Analyzing the provisions of 17 USC 504(c) and its legislative history, Judge Wood found that the record companies could only recover from Lime Wire one statutory damages award for each copyrighted work infringed.   The decision is worth the read, find it here.

But how does one prove ownership and infringement of 11,000 plus works?  And how do you prove that each owner owned it at the time the work was infringed?   Judge Wood's decision of March 29, 2011 is here.   Review each category, and you have a neat primer on how to prove copyright ownership in a variety of contexts.   A unique angle is that Plaintiffs hired private investigators in 2010 to illegally download one of each of the works.   Defendants challenged the "timing" of ownership.   Judge Wood granted summary judgment on ownership, since that was essentially unchallenged by the evidence.

Practice Tip:   Judge Wood points to the Second Circuit's case law showing that if a litigant challenges evidence submitted on a summary judgment motion, the proper remedy is a motion to strike the evidence.

On April 4, 2011, Judge Wood looked at the question of whether a statutory damages award was available for each song, or for each sound recording (an album is one sound recording and ordinarily supports only one statutory damages award).   Judge Wood's decision here.    Judge Wood ruled that if infringements of individual songs could be shown prior to release of the album, statutory damages awards would be available for infringements of those individual songs.

On April 6, 2011, Judge Wood considered the question of whether Lime Wire was "off the hook" as a secondary infringer where the record companies had already obtained judgments against primary infringers.  Judge Wood's answer: "no".   The damages trial is scheduled for May 2, 2011.

The April 6, 2011 decision below:

Lime Wire Partial Summary Judgment April 6, 2011
 Purchase Copyright Litigation Handbook 2010 by Raymond J. Dowd from West here  

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