Columbia Pictures provides the most persuasive analysis of the correct number of separate awards of statutory damages available to a plaintiff. Lime Group recognized that the question was a particularly close one, and the court erred in reaching the opposite result from Columbia Pictures. The Lime Group analysis is based on a fundamentally flawed earlier decision and relies, in the end, on an approach as likely to reward infringers rather than defend the rights of copyright holders: determining whether the potential result in any given case is absurd. Regarding the hypothetical case provided at the beginning of this Essay, Warren should be entitled to sue only One Stop and recover three separate awards of statutory damages for each different recording of "Ode." Nothing in the legislative history nor the plain language of the Copyright Act suggests that a high number of awards should vary the way that a court interprets 17 U.S.C. § 504(c)(1). To the contrary, both the statute and the legislative history look to the number of separately liable infringers rather than the number of infringements. In the hypothetical, three separately liable infringers infringed Warren's work. If One Shop sells all three versions, then the only rationale supporting one award rather than three is the presence or absence of other defendants, namely the three separately liable manufacturers. Nothing in the Copyright Act, however, supports either an analysis or a result based on a question of joinder. In fact, the overarching question is which result better supports the policies underlying the Copyright Act; the better view will always defend the rights of the copyright owner rather than reward an infringer.
Timothy L. Warnock,
One Work, Three Infringers: Calculating the Correct Number of Separate Awards of Statutory Damages in a Copyright Infringement Action,
14 Vanderbilt Journal of Entertainment and Technology Law
Available at: https://scholarship.law.vanderbilt.edu/jetlaw/vol14/iss2/7