jointly and severally liable. The court rejected this argument and ruled that the plaintiffs were
entitled to only one statutory damage award per work from the defendants, regardless of the
number of direct infringers of that work with whom the defendants were jointly and severally
liable.^2238
Section 504(c)(1) allows the recovery of a statutory damages award “for all infringements
involved in the action, with respect to any one work, for which any one infringer is liable
individually, or for which any two or more infringers are liable jointly and severally.” The
plaintiffs argued that the defendants and each direct infringer represented one unit of infringers
who were jointly and severally liable, and they should therefore get an award for each such unit.
The plaintiffs pointed to a similar hypothetical in Professor Nimmer’s treatise arguing for such
an outcome. The court, after a review of relevant precedent, rejected the Nimmer hypothetical
and concluded that Congress intended for the copyright statute to treat jointly and severally liable
infringers the same way that the statute treats individually liable infringers – just as a plaintiff is
entitled to one statutory damage award per work for any individually liable infringer, a plaintiff
is entitled to one statutory damage award per work for any two or more jointly and severally
liable infringers. The court found that, in situations involving mass infringements, plaintiffs’
position would lead to an absurd result of statutory damages exceeding a billion dollars. And the
court noted that the number of direct infringers the defendants induced to infringe could be taken
into account in setting the dollar amount of each statutory damage award per work infringed.^2239
On April 4, 2011, the court issued a ruling that both an album and a sound recording that
the plaintiffs issued as an individual track could constitute a “work” infringed for purposes of
computing statutory damages. Specifically, the plaintiffs could recover a statutory damages
award for each sound recording that (1) plaintiffs made available as an individual track and (2)
that was infringed on the Lime Wire system during the time period in which it was issued as an
individual track. However, for those sound recordings that plaintiffs issued only as part of an
album, the plaintiffs could recover only one statutory damage award for that album, not for each
individual sound recording.^2240
In additional follow-up rulings on damages, the court rejected the plaintiffs’ attempt to
convert their election from statutory damages to actual damages with respect to untimely
registered recordings, as the defendants would be unduly prejudiced by that change one month
before trial, particularly in view of the fact that the defendants had been denied certain discovery
on the ground that the plaintiffs were seeking only statutory damages.^2241 The court also
precluded expert testimony showing that other illegal services would have induced infringement
(^2238) Id. at 315, 321.
(^2239) Id. at 316-320.
(^2240) Arista Records LLS v. Lime Group LLC, 2011 U.S. Dist. LEXIS 36536 at 7, 18 (S.D.N.Y. Apr. 4, 2011).
“Thus, for sound recordings that, like those of the Beatles, we4re apparently not available as individual tracks
from iTunes or other services during the time period relevant to this action, Plaintiffs can recover only one
award per album infringed.” Id. at 18 n.7.
(^2241) Arista Records LLC v. Lime Group LLC, 2011 U.S. Dist. LEXIS 38949 at 8, *10-11 (S.D.N.Y. Apr. 11,
2011).