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Copyright - Attorneys' Fees - Internet Library of Law and Court Decisions - Updated May 17, 2007Civil Action No. 04-90-KAJ (D. Del. September 26, 2005)
After a bench trial, a Federal Delaware District Court found defendant Consumer Innovations guilty of willfully infringing plaintiff Webloyalty.com's copyrights in a banner ad and related "sell page." These materials are used by Webloyalty to promote an online "club" whose members, for a monthly fee, can purchase merchandise offered for sale through the "club" at a discount. Defendant, a competitor, was held to have infringed plaintiff's copyrights by copying substantial portions of these advertising materials. Such copying was held to be willful, in large part, because Consumer Innovations denied copying plaintiff's materials in the face of convincing evidence to the contrary. As a result, the Court awarded plaintiff statutory damages of $50,000, comprised of $25,000 for each act of infringement, together with a significant portion of the attorneys' fees expended by plaintiff in prosecuting this action. In setting the amount of such damages, the Court took into account both the absence of any evidence that plaintiff had been injured by defendant's activities, as well as evidence that defendant generated only $1,000 in revenue from its use of the promotional materials at issue. Quick HitsGetaped.com Inc. v. Cangemi
188 F. Supp. 2d 398 (S.D.N.Y. 2002)
District Court awards Getaped.com $46,015 in statutory damages, attorney’s fees and court costs as a result of the copying of its website’s source code by a direct competitor, who utilized the same to operate a competing website. Of import, the court determined that a Web site's source code is considered "published" when the site goes live on the Internet. As Getaped registered its website within three months of this date, it was entitled to statutory damages under the Copyright Act, 17 USC 505, as a result of defendants’ copying of its site, which occurred after plaintiff’s site went live, but before a copyright therein was registered. As noted by the court “both statutory damages and attorney’s fee and costs are unavailable if “(1) an infringement of copyright in a unpublished work commenced before the effective date of its registration; or (2) any infringement of copyright commenced after first publication of the work and before the effective date of its registration, unless such registration is made within three months after the first publication of the work.” 17 USC section 412.
The court determined that $30,000 in statutory damages was appropriate given that defendants’ conduct was “willful” within the meaning of 17 USC Section 504. In reaching this result, the court relied on the fact that defendants copied the source code of Getaped’s site, which featured a prominent copyright notice, and continued to use this content after receipt of notice of infringement from Getaped. The Court also awarded plaintiff the actual attorneys fees it incurred in prosecuting the suit under 17 USC section 505.
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