essence, the term “each violation” is best understood to mean “each violative act
performed by Defendant.” Thus, AP would violate the DMCA each time it
wrongfully distributed a photograph to its subscribers. In this case, the Court
concludes that AP committed only one alleged violative act by distributing the
End of Serenity photograph to its PhotoStream subscribers, even though there
were 1,147 recipients.^1430Upon a motion for reconsideration of this ruling, the district court adhered to its original
analysis, but certified the issue for interlocutory appeal and stayed all further proceedings
pending resolution of that appeal.^1431
(ii) Goldman v. Healthcare Management SystemsIn this case, the plaintiff sought statutory damages for the defendants’ distribution of
infringing copies of a computer program with the plaintiff’s CMI removed. The court cited the
McClatchey case for the proposition that, for purposes of Section 1203(c)(3) statutory damages,
the phrase “for each violation” means each violative act performed by the defendant. However,
in the instant case, unlike a television signal or an AP wire story sent simultaneously to all
subscribers, the alleged “violation” was not a singular, isolated event, but rather the provision of
the same computer program at different times, under different circumstances, to multiple
hospitals. Accordingly, there could be a separate statutory damages award for each computer
program distributed to a hospital. However, the court further ruled that whether the subsequent
distribution to the hospitals of any particular update to those computer programs would
constitute an additional separate “violation” of the plaintiff’s copyright was a factual question
that would have to be resolved by a jury.^1432
(iii) Stockwire Research Group v. LebedSee the discussion of this case in Section II.G.1(c)(1)(iii) above.
(^1430) Id. at 17-18. The plaintiff also sought statutory damages under Section 504 of the copyright statute. Citing
Professor Nimmer’s treatise, she argued that she was entitled to recover multiple statutory damages awards if a
party is found to be jointly and severally liable with multiple parties who are not jointly and severally liable
with each other. Id. at 8. The court rejected this argument, based on the language in Section 504(c)(1) that an
award of statutory damages may be recovered for all infringements involved in the action “for which any two or
more infringers are liable jointly and severally” (emphasis added). Id. at 9-10. Based on the presence of the
word “any” rather than “all” in the statute, the court concluded that “the most plausible interpretation of the
statute authorizes a single award when there is any joint and several liability, even if there is not complete joint
and several liability amongst all potential infringers.” Id. at 10. Moreover, the court noted that it need not
reject Professor Nimmer’s position in all circumstances, because in the instant case the only defendant, AP, was
jointly and severally liable with all downstream infringers, so the plaintiff was entitled to only a single statutory
damages award. Id. at *12.
(^1431) McClatchey v. The Associated Press, 2007 U.S. Dist. LEXIS 41969 (W.D. Pa. June 8, 2007).
(^1432) Goldman v. Healthcare Management Sys., 559 F. Supp. 2d 853, 867-68 (W.D. Mich. 2008).