Just a few days ago we wrote about the success of Lime Wire, the defendant in a copyright infringement action, in reducing its damages exposure from trillions of dollars to merely hundreds of millions (see A Resounding Victory). Well, Lime Wire’s efforts to further reduce that exposure, to only tens of millions of dollars, were not so successful.
As previously reported, the plaintiffs in this matter have elected to receive “statutory damages” in an amount of “not more than $150,000” per infringement. Actually, the relevant statute – that’s 17 U.S.C. §504 (c)(1) for you anal-retentive readers – provides for damages per infringement “per work”. The previous legal tussle, which Lime Wire so handily won, pertained to the definition of “infringement.” The latest battle was fought over the meaning of the word “work.”
A plaintiff is entitled to only “one award of statutory damages for any ‘work’ infringed.” The law provides that “all parts of a compilation … constitute one work.” The “sound recordings” infringed by Lime Wire had been distributed, and copyrighted, by the plaintiffs as both individual recordings and as parts of albums. Thus, the issue was whether the plaintiffs had issued the recordings “separately, or together as a unit.”
Lime Wire, naturally, contended that “if at any time Plaintiffs made available a particular sound recording as part of an album, Plaintiffs can recover only one statutory damages award for all of the sound recordings on that album, notwithstanding the fact that the Plaintiffs may have issued some or all of those particular sound recordings as individual tracks.” The plaintiffs, also naturally, sought an award for each individual track.
This fight went to the plaintiffs. “Nothing in the Copyright Act bars a plaintiff from recovering a statutory damages award for a sound recording issued as an individual track, simply because that plaintiff, at some point in time, also included that sound recording as part of an album or other compilation.” The plaintiffs “issued [these] … works separately,” and not only “together as a unit. Those individual tracks are thus ‘works’ issued by Plaintiffs that were infringed on the Lime Wire system, with respect to which Plaintiffs may seek to recover a statutory damage award.”
The latest decision leaves the folks at Lime Wire facing a possible $1.4 billion in damages.
THE LESSON TO BE LEARNED: As best said by the late Senator Dirksen, “a billion here, and a billion there, and pretty soon you’re talking about real money.”