Advanced Copyright Issues on the Internet - Fenwick & West LLP

(iii) McClatchey v. The Associated PressThe facts of this case are set forth in Section II.G.1(b)(1)(ii) above. The Associated Press(AP) brought a motion in limine seeking to limit the number of statutory damage awards that theplaintiff could recover for the distributions of her photograph with CMI removed. The plaintiffclaimed entitlement to a separate statutory award for each downstream distribution of thephotograph to each of AP’s 1,147 subscribers who had received the photograph. AP argued thatthe distribution of false CMI to all AP subscribers should be treated as only a single violation ofthe DMCA, entitling the plaintiff to but a single award of statutory damages. 993 The court agreedwith AP based on Congress’ intent in providing statutory damages as an alternative type ofdamage award:Presumably, plaintiffs will elect statutory damages only when that calculationexceeds their actual damages. In other words, Congress has determined that inorder to deter violations of the DMCA, plaintiffs electing statutory damages mayreceive a windfall. The Court’s definition of the term “violation” will determinethe extent of that windfall. This Court concludes that Congress would not haveintended to make the statutory damages windfall totally independent of thedefendant’s conduct. Where one act by Defendant results in mass infringement, itis more likely that actual damages will yield the more favorable recovery. TheDMCA damages provisions are clearly focused on the defendant’s conduct.Compare section 1203(c)(3)(A) (calculating statutory damages “per act”). Inessence, the term “each violation” is best understood to mean “each violative actperformed by Defendant.” Thus, AP would violate the DMCA each time itwrongfully distributed a photograph to its subscribers. In this case, the Courtconcludes that AP committed only one alleged violative act by distributing theEnd of Serenity photograph to its PhotoStream subscribers, even though therewere 1,147 recipients. 994Upon a motion for reconsideration of this ruling, the district court adhered to its originalanalysis, but certified the issue for interlocutory appeal and stayed all further proceedingspending resolution of that appeal. 995993994995McClatchey v. The Associated Press, 2007 U.S. Dist. LEXIS 40416 (W.D. Pa. June 4, 2007), at *13.Id. at *17-18. The plaintiff also sought statutory damages under Section 504 of the copyright statute. CitingProfessor Nimmer’s treatise, she argued that she was entitled to recover multiple statutory damages awards if aparty is found to be jointly and severally liable with multiple parties who are not jointly and severally liablewith each other. Id. at *8. The court rejected this argument, based on the language in Section 504(c)(1) that anaward of statutory damages may be recovered for all infringements involved in the action “for which any twoor more infringers are liable jointly and severally” (emphasis added). Id. at *9-10. Based on the presence ofthe word “any” rather than “all” in the statute, the court concluded that “the most plausible interpretation of thestatute authorizes a single award when there is any joint and several liability, even if there is not complete jointand several liability amongst all potential infringers.” Id. at *10. Moreover, the court noted that it need notreject Professor Nimmer’s position in all circumstances, because in the instant case the only defendant, AP, wasjointly and severally liable with all downstream infringers, so the plaintiff was entitled to only a single statutorydamages award. Id. at *12.McClatchey v. The Associated Press, 2007 U.S. Dist. LEXIS 41969 (W.D. Pa. June 8, 2007).- 220 -