Getty v. Virtual

Court: United States District Court, W.D. Washington, Seattle  

Document status: Court Order on Award of (Statutory) Damages

Issue or relevant point: When are maximum statutory damages appropriate?

Ruling:  Maximum statutory damages are appropriate when the evidence shows willful infringement, profit by the infringer, loss of revenue to the rights holder, and where the award will serve to protect the copyright system from flagrant violation of the law.

Assuming available as a remedy, courts have wide discretion in determining the amount of statutory damages to be awarded within the ranges provided by 17 U.S.C. § 504(c)(1)-(2).  In doing so, the court is directed to do “what is just in the particular case, considering the nature of the copyright, the circumstances of the infringement and the like…”

Statutory damages, often selected when no certainty exists as to an amount of actual damages, serve compensatory and punitive purposes, and are particularly appropriate where a Defendant fails to provide a meritorious defense.  If a Plaintiff demonstrates that the infringer's conduct was willful, the court may award maximum statutory damages of $150,000.00 per infringement.

In this case, the Court assessed four factors in its determination of the appropriate amount of statutory damages, which were:

(1) the infringer's profits and expenses saved because of the infringement;
(2) the Plaintiff's lost revenues;
(3) the strong public interest in ensuring the integrity of copyright laws; and
(4) whether the infringer acted willfully.
While the Court discussed the first two factors, it noted “these factors are generally given less weight than the others because of the inherent uncertainty in calculating an infringer's profits and a Plaintiff's lost revenue.”  Here, the Court found the evidence showed at least some profit by the Defendant, and some loss by the Plaintiff, thus providing initial support of statutory damages above the statutory minimum ($750).

In evaluating the ‘public interest’ factor, the Court first noted that ensuring the integrity of copyright laws may be evaluated by looking at the severity of the infringers' conduct: if the infringing conduct is severe, a court is more likely to award higher statutory damages because the higher award will deter such conduct in the future, and vice versa.  For guidance, the Court looked at IO Group, Inc. v. Antelope Media, which was another case that evaluated an award of maximum statutory damages.1  In IO Group the evidence showed, among other things, the infringement was willful, especially when infringement continued even after notice was provided. The Court felt the Defendants behavior in this case was sufficiently similar to the Defendants in IO Group to justify finding a maximum award as being appropriate in order to protect the public interest.

In assessing the ‘willfulness’ factor, the Court first stated that the Plaintiff must prove willfulness, and particularly that a Defendant’s act was "with knowledge that [it] constituted copyright infringement” and that “[T]his factor is typically given the most weight by courts in determining an appropriate amount of statutory damages…”  The Court cited other cases where willful infringement was found, namely where notice(s) of infringement or requests for licensing were disregarded by a Defendant.

In this case there was substantial evidence provided by the Plaintiff that the Defendants had knowledge at least as early as 2007, but nevertheless continued their infringement thereafter.  The Court found this continued use supported a maximum award.

The Gist
Regardless if you are a Plaintiff or a Defendant in a copyright infringement matter, in a case where statutory damages are available, if there is evidence of ‘egregious’ behavior and knowledge of infringement, such as continued use after notice, a finding of maximum statutory damages is well within the discretion of the court.