mod chips, but nevertheless willfully violated the agreement and continued to sell them.
Thereafter, he signed a stipulated consent judgment and injunction that prohibited him from
marketing or selling the mod chips and agreed to pay $50,000 in damages, but still continued to
sell the mod chips surreptitiously. When he was caught by SCEA doing so, he admitted that he
shouldn’t have been doing so and entered into a second consent judgment.^1401
Based on various evidence, the court found that Filipiak had sold a minimum of 7,039
circumvention devices and proceeded to adjudicate the amount of statutory damages that Filipiak
should pay. The court first ruled, by analogy to a statutory damages case under the Federal
Communications Act, that Section 1203(c)(3)(A) authorizes a separate award of statutory
damages for each device sold.^1402 Because there were no cases construing what “just” means
under Section 1203(c)(3)(A), the court looked to cases construing the term under the general
statutory damages provision of Section 504(c) of the copyright statute. Under the Section 504(c)
case law, courts consider the following factors in determining the amount of a damages award:
the expense saved by the defendant in avoiding a licensing agreement; profits reaped by the
defendant in connection with the infringement; revenues lost to the plaintiff; the willfulness of
the infringement; and the goal of discouraging wrongful conduct.^1403 Applying the factors, and
particularly considering the willful nature of Filipiak’s violations, the court awarded statutory
damages of $800 per device sold before Filipiak entered into the first agreement with SCEA, and
the maximum of $2500 per device sold or shipped thereafter, for a total award of $5,631,200.^1404
(ii) Sony Computer Entertainment v. DivineoThe facts and rulings of the court in Sony Computer Entertainment America, Inc. v.
Divineo^1405 are reported in Section II.G.1(m)(19) above. As a remedy for the DMCA violations
found by the court, the plaintiff elected statutory damages. The court determined that the
defendant had sold a total of 10,012 circumvention devices, and that sales of the devices
constituted willful infringement, at least with respect to those sales after the filing of the lawsuit
in 2004. Although the defendant had decided to stop selling the HDLoader software in early
2005, the defendant offered no credible explanation for its decision to continue selling its other
circumvention devices after that point. Accordingly, the court awarded enhanced damages of
$800 per device for sales after the first quarter of 2005 (an estimated 2,913 devices) and the
minimum damages of $200 per device sold before that time, for a total statutory damages award
of $3,750,200.^1406
(^1401) Id. at 1070-74.
(^1402) Id. at 1074.
(^1403) Id. at 1074-75.
(^1404) Id. at 1075-76.
(^1405) 457 F. Supp. 2d 957 (N.D. Cal. 2006).
(^1406) Id. at 966-67.