Advanced Copyright Issues on the Internet - Fenwick & West LLP

inducement as a matter of law.” 1853 Accordingly, the court denied summary judgment on theissue of common law contributory liability. 1854Statutory Damage Award. CoStar elected to take a statutory damages award underSection 504(c)(1) of the copyright statute, which provides that the copyright owner may elect totake statutory damages in lieu of actual damages and profits for “all infringements involved inthe action, with respect to any one work …” The court turned to the issue of what constitutes a“work” for purposes of statutory damages. LoopNet argued that CoStar was limited to no morethan 13 statutory damages awards because it had only 13 copyright registrations (thephotographs had been registered in groups as compilations). CoStar argued that each of its 348photographs constituted a separate work and, therefore, it was entitled to 348 separate statutorydamages awards. 1855The court noted a division of authority over whether the copyright registration isdeterminative of the number of works or whether the determinative factor is whether each workis independently copyrightable. After reviewing the facts of various cases, the court concludedthat the critical fact was “not that CoStar registered multiple photographs on the sameregistration form, but whether it registered them as compilations or as individual copyrights.” 1856The court noted that the language on the registration application under “Nature of Authorship”on all but the first registration read “revised compilation of database information; some originaltext and photographs.” 1857 The first registration read “compilation, text, and photographs,” butunder the description of the work to be registered, the form read “compilation of public domainmaterial, substantial original text, and original photographs.” 1858 The court concluded that thepreceding language indicated that all of the registrations were compilation registrations, becausethe reference to “photographs” could only have efficacy as a description of the work to beregistered if it was made with reference to the other elements being copyrighted – thecompilation of work. 1859 Accordingly, CoStar was eligible for only 13 statutory damage awards,corresponding to the number of registered compilations. 1860The Scope of the Preliminary Injunction. An interesting aspect of the case concerned thescope of preliminary injunction the court entered against LoopNet and the obligations the court1853 Id. at 707-08.1854 LoopNet raised a misuse defense, arguing that CoStar had misused its copyrights in the photographs byextending them beyond their intended reach to limit its licensees from distributing the entire database, includingdata and photographs in which it had no copyright. Id. at 708. The court rejected this defense with relativelylittle analysis, distinguishing other copyright misuse cases factually and concluding “there is no allegation ortying or abuse of copyright serious enough to offend the public policy behind copyright and rise to the level ofmisuse.” Id. at 709.1855 Id.1856 Id. at 711.1857 Id.1858 Id.1859 Id. at 711-12.1860 Id. at 712.- 403 -