connection under the DMCA.^1426 “Furthermore, the lack of a burden-shifting framework for
apportioning profits under the DMCA suggests that a plaintiff has a more exacting duty than a
copyright plaintiff to show a causal connection between the DMCA violations and the
defendant’s profits.”^1427
Finally, the district court noted that the plaintiffs had not objected to the magistrate’s
rejection of their alternative disgorgement theories, and the district court found no clear error in
the magistrate’s conclusions on those points. Similarly, no party had objected to the magistrate’s
recommendation regarding statutory damages, and finding no clear error, the court adopted the
magistrate’s conclusion that, on the facts accepted by both parties for purposes of the instant
motion, each user log-in gave rise to a separate act of circumvention under Section 1203(c)(3).
The court agreed with the magistrate’s observation that this conclusion would not foreclose Tri-
State from factually contesting how the crack operated or the total number of circumventions that
occurred.^1428
(2) Statutory Damages and Disgorgement of Profits for
Violations of Section 1202
(i) McClatchey v. The Associated PressThe facts of this case are set forth in Section II.G.1(b)(1)(ii) above. The Associated Press
(AP) brought a motion in limine seeking to limit the number of statutory damage awards that the
plaintiff could recover for the distributions of her photograph with CMI removed. The plaintiff
claimed entitlement to a separate statutory award for each downstream distribution of the
photograph to each of AP’s 1,147 subscribers who had received the photograph. AP argued that
the distribution of false CMI to all AP subscribers should be treated as only a single violation of
the DMCA, entitling the plaintiff to but a single award of statutory damages.^1429 The court
agreed with AP based on Congress’ intent in providing statutory damages as an alternative type
of damage award:
Presumably, plaintiffs will elect statutory damages only when that calculation
exceeds their actual damages. In other words, Congress has determined that in
order to deter violations of the DMCA, plaintiffs electing statutory damages may
receive a windfall. The Court’s definition of the term “violation” will determine
the extent of that windfall. This Court concludes that Congress would not have
intended to make the statutory damages windfall totally independent of the
defendant’s conduct. Where one act by Defendant results in mass infringement, it
is more likely that actual damages will yield the more favorable recovery. The
DMCA damages provisions are clearly focused on the defendant’s conduct.
Compare section 1203(c)(3)(A) (calculating statutory damages “per act”). In(^1426) Id. at 7-8, 12.
(^1427) Id. at 9.
(^1428) Id. at 14-15.
(^1429) McClatchey v. The Associated Press, 2007 U.S. Dist. LEXIS 40416 at 13 (W.D. Pa. June 4, 2007).