IP Law Daily, COPYRIGHT—E.D. Tex.: No right to jury trial where only minimum statutory damages sought, (Apr 27, 2020)

By Robert B. Barnett Jr., J.D.

Author obtains injunction and minimum Copyright Act damages from individual who posted author’s books for free online.

In an author’s copyright infringement suit against an individual who set up a website and gave away the author’s 12 books for free, the federal district court in Marshall, Texas, has awarded the author $9,000 in statutory damages under the Copyright Act, a permanent injunction prohibiting the individual from distributing the author’s copyrighted works, and an award of attorney fees and costs. The author agreed to seek the statutory minimum—$750 per book—because the right to a jury trial on statutory damages does not apply when a plaintiff seeks the minimum, which removed any concerns about the absence of a waiver from the individual, who failed to respond to the damages motion (Van Stry v. McCrea, April 20, 2020, Bryson, W.).

John Van Stry, the author of 12 books, sued Travis Robert McCrea for copyright infringement for giving away all 12 books on McCrea’s website for free without permission. The case was complicated by McCrea’s homelessness, his mental problems, his inability to afford an attorney, his decision to represent himself, and his insistence that he was merely practicing the teachings of the Kopimist Church, which he said believes that "copying is a holy act." In any event, the court had previously granted the author summary judgment on liability, leaving only the issue of damages. The court was reluctant to resolve the statutory damages issue in light of the fact that the parties are guaranteed under the Copyright Act the right to a jury trial to settle damages. The court, therefore, gave the parties seven days after granting summary judgment to express their views on whether they intended to exercise their right to a jury trial on damages.

Statutory damages. The author responded that he was waiving his right. Anticipating that the individual might not respond, the author also agreed to seek the statutory minimum of $750 per work if the individual failed to waive his right. The right to a jury trial does not exist if the plaintiff seeks the statutory minimum (BMG Music v. Gonzalez, 430 F.3d 888, 892-93 (7th Cir. 2005)). As expected, the individual failed to respond. The author, therefore, conceded that an award of $750 per copyrighted book was appropriate. The court accepted that concession and awarded the author $750 per book, or a total of $9,000 in statutory damages.

Injunction. The author also sought a permanent injunction. Under the Copyright Act, an injunction does not automatically issue upon a finding of liability. The author was still required to demonstrate the four elements of a permanent injunction: (1) an irreparable injury occurred, (2) monetary damages were inadequate, (3) that, on the balance of hardships, an equitable remedy was warranted, and (4) the public interest would be served. The irreparable injury came from the harm to his competitive position on Amazon and the impediment to his writing career. Monetary damages were inadequate because, while they were awarded, they were unlikely to ever be collected. Even though the individual told the court that he had taken down the offending website, the court could not be certain that it would not be started up again. As for hardships, the individual admitted that he would not face any hardships if he was forced to stop the infringing activities, largely because they had already stopped. Thus, the only burden he would face was complying with the law. And, finally, the public always receives a benefit when the rights of copyright holders are vindicated. The court then issued a permanent injunction, applicable to each of the 12 books, that the individual never copy, reproduce, or distribute the author’s copyrighted works, including any hereafter created, without his authorization.

Costs. The court also agreed to award attorney fees and costs to the author, noting that the individual’s position in the case was "distinctly lacking in both legal and factual support." His lack of diligence and his conduct during discovery drove up costs unnecessarily, for which he should pay. The court ordered the author to submit affidavits setting forth his attorney fees and costs within 14 days.

This case is No. 2:19-CV-00104-WCB.

Attorneys: Gary Jason Fischman (Fischman Law PLLC) for John Van Stry. Travis McCrea, pro se.

Cases: Copyright GCNNews TexasNews