United States District Court, District of Columbia
S. CHUTKAN United States District Judge
December 2, 2016, this court determined that TVP infringed
SEI's copyrights with regard to 51 TVP Polonia episodes
that SEI had registered in the United States (Am. Mem. Op.,
ECF No. 80). The court solicited further briefing as to
the appropriate amount of statutory damages. Having
considered the parties' filings and the relevant
precedent, it is hereby ORDERED that Telewizja Polska shall
pay Spanski Enterprises $60, 000 per work, for a total of $3,
Copyright Act states that, where copyright infringement has
been found, courts may award between $750 and $30, 000
“for all infringements involved in the action, with
respect to any one work.” 17 U.S.C. § 504(c)(1).
If the infringement is found to be willful, the court may
award up to $150, 000 per work. Id. § (c)(2).
SEI requests an award of $150, 000 per work, for a total sum
of $7.65 million dollars. TVP argues that the court should
award the plaintiff $1, 800 per work for a total sum of $91,
set the statutory damages range for willful copyright
infringement to protect important public interests as well as
the private interest of the plaintiff. Copyright damages are
intended to motivate creativity of authors and inventors as
well as allow the public “access to the products of
their genius after a limited period of exclusive control has
expired.” Capitol Records, Inc. v.
Thomas-Rasset, 692 F.3d 899, 908 (8th Cir. 2012) (citing
Sony Corp. of Am. v. Universal City Studios, Inc.,
464 U.S. 417, 429 (1984)). Statutory Copyright Act damages
“are designed not only to provide ‘reparation for
injury, ' but also to ‘discourage wrongful
conduct'” on the part of the defendant and other
potential infringers. Sony BMG Music Entertainment v.
Tenenbaum, 719 F.3d 67, 71 (1st Cir. 2013) (quoting
F. W. Woolworth Co. v. Contemporary Arts, 344 U.S.
228, 233, (1952)) (upholding the constitutionality of an
award by a jury instructed to consider “the need to
deter this defendant and other potential infringers.”).
Id. at 69. Statutory damages fulfill
“‘compensatory and punitive purposes' and
help ‘sanction and vindicate the statutory policy of
discouraging infringement.'” Dream Games of
Arizona, Inc. v. PC Onsite, 561 F.3d 983, 992 (9th Cir.
2009) (quoting L.A. News Serv. v. Reuters Television
Int'l, 149 F.3d 987, 996 (9th Cir. 1998)).
consider a number of factors in calculating a statutory award
for willful copyright infringement, including: (1) the
defendant's history of copyright infringement,
see, e.g., Superior Form Builders, Inc.
v. Dan Chase Taxidermy Supply Co., 74 F.3d 488, 496-497
(4th Cir. 1996); (2) deterrence against future violations of
copyright infringement, see, e.g.,
International Korwin Corp. v. Kowalczyk, 855 F.2d
375, 383 (7th Cir. 1988); (3) the defendant's purpose and
intent, see, e.g., Sony BMG Music Entertainment
v. Tenenbaum, 660 F.3d 487, 503-4 (1st Cir. 2011); and
(4) the attitude and conduct of the parties, see,
e.g., Warner Bros. Inc. v. Dae Rim Trading,
Inc., 877 F.2d 1120, 1126 (2d Cir. 1989).
court found that TVP acted volitionally in infringing
SEI's copyright because TVP's employees removed
territorial restrictions to make the programming accessible
in North America, (Am. Mem. Op. at 13); TVP's arguments
to the contrary appear to be based on an intentional
misreading of the court's opinion. The court found that
TVP could not have been ignorant to the fact it was
infringing SEI's copyright because it granted the
exclusive license over TVP Polonia content to SEI and then
intentionally infringed SEI's rights. (Id. at
argues that SEI suffered no actual damage from the copyright
infringement (Def. Supp. Post-Trial Brief, ECF No. 82 at 2,
4), that SEI should have attempted to mitigate any possible
damages when it found out that TVP was infringing SEI's
copyright (id. at 6-7), and that SEI's demand
for more than $7.5 million dollars in statutory damages is
grossly excessive when compared to the actual damage
inflicted (id. at 8-9). But actual damages are not
required. See, e.g., Sony BMG Music
Entertainment, 660 F.3d 487 (holding that
defendant's argument that statutory damages must be
reasonably related to the actual damages was incorrect
because Congress, in allowing plaintiffs to choose to recover
either actual or statutory damages, made clear that statutory
damages are not contingent on a demonstration of actual
damages); Chi-Boy Music v. Charlie Club, Inc., 930
F.2d 1224, 1229-30 (7th Cir. 1991) (concluding that statutory
damages exist because actual damages are
“often virtually impossible to prove”). TVP
provides no precedent, nor is the court aware of any,
suggesting that SEI has any obligation to
“mitigate” statutory damages.
also contends that the court should award statutory damages
based on the market value of each program. But market value
is only relevant in assessing actual damages. The court will
not consider TVP's contention that the court erred by
finding willful infringement.
the Defendant's history of infringing Plaintiff's
copyright, as evidenced in the court's reference to the
2009 settlement agreement between the parties in the Southern
District of New York litigation (Am. Mem. Op. at 3);
Defendant's willful infringement and the need for
deterrence; Defendant's egregious subsequent
“intentional manipulation” of evidence “for
the purposes of this litigation, ” (id. at
15); and the fact that the court lacks information necessary
to determine actual damages and finds that information has in
part been obfuscated by Defendant's conduct; the court
awards SEI $60, 000 for each of the 51 episodes infringed by
TVP for a sum total of $3, 060, 000 dollars.
corresponding order will issue separately.
 An amended memorandum opinion setting
forth findings of fact and conclusions of law was filed on
December 12, but contained no substantive changes.
 The court did not rely on
Plaintiff's Reply or Defendant's Sur-reply (styled as
“Defendant's Memorandum of Law in Opposition to
Plaintiff's Motion for Leave to File a Reply Supplemental
Brief as to Statutory Damages”); Plaintiff's Motion
for Leave to File a Reply is denied as moot and