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Hernandez Gets Boo-urned in Federal Court – Statutory Damages for Copyright Infringement

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As my colleague Monique Ashamalla pointed out over at our sister blog, IP Advocate, the Federal Court of Canada recently handed down a judgment of particular note to content owners: the court awarded $10,000,000 in statutory damages against a defendant who copied and uploaded infringing copies of TV shows The Simpsons and Family Guy.

The case was styled Twentieth Century Fox Film Corporation v Nicholas Hernandez, John Doe and Jane Doe, and the judgment, issued by Justice Campbell, bears a date of December 3, 2013 and the docket number T-1618-13. In the endlessly charming manner of Canadian courts, a copy of the judgment does not appear to be currently available on the Federal Court website, nor on CanLII, but Alan Macek’s indispensable IPPractice.ca has made a copy of the judgment available at this page. (Hat tip to Adam Jacobs (@ajacob24) for pointing that out to me.)

The default judgment is impressive for its sheer size: the aforementioned $10,000,000 in statutory damages plus another $500,000 in punitive/exemplary damages for “repeated, unauthorized, blatant, high-handed and intentional misconduct and [] callous disregard for the Plaintiff’s copyright rights”. The judgment does not go into detail regarding how the $10,000,000 figure was arrived at, though we know the conduct which occasioned it: the defendant copied episodes of The Simpsons and Family Guy from television broadcasts, uploaded them to servers accessible via the internet and enabling users to watch the episodes online. The defendant received revenue from the activities and the judgment describes his activities as being “for commercial purposes”, thus allowing the plaintiff to access the “commercial purposes” statutory damages scale of $500-$20,000 per work.

The judgment also contains an injunction prohibiting the defendant from further infringements of the plaintiff’s copyright in the programs (including in future episodes not yet created).

Of additional interest is the fact that the judgment awarded costs to the plaintiffs on a “substantial indemnity” basis in the amount of $78,573.25 – that means that the plaintiffs did not get all of their legal costs covered, but probably something north of 50%. All of which is to say that, as sobering as the amount of the statutory and punitive damages awarded is, it’s also worth noting that it evidently costs plaintiffs something north of $75,000 to prosecute an undefended copyright infringement action in Federal Court.