Case 1:18-cv-00950-LO-JFA Document 610 Filed 11/27/19 Page 1 of 26 PageID# 25497
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE EASTERN DISTRICT OF VIRGINIA
`Alexandria Division
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`Sony Music Entertainment, et ai.
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`Plaintiffs,
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`V.
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`Cox Communications, Inc., et ai.
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`Defendants.
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`Case No. 1; 18-cv-950-LO-IDD
`Hon. Liam O'Grady
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`AMENDED MEMORANDUM OPINION AND ORDER
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`Before the Court are the Parties' Cross Motions for Summary Judgment. Dkt. 312 (Pis.'
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`Mot.), Dkt. 328 (Defs.' Mot.). In a hearing before the Court on November 26,2019, Defendants
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`directed the Court's attention to an issue regarding the knowledge element for contributory
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`infringement, and its treatment at summary judgment. Specifically, there is confusion regarding
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`the treatment of musical compositions within a prima facie case for contributory liability. The
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`Court agrees with the Parties that clarification is appropriate, and takes this opportunity to clarify
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`its ruling. As to knowledge of musical compositions in suit. Section 1I.B.2 is replaced, and this
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`opinion supersedes the Memorandum Opinion and Order of November 15,2019 (Dkt. 586).
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`Fifty-three members of the recording industry ("Plaintiffs" or "Sony") bring this action
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`for copyright infiingement. They seek relief from Cox Communications, Inc. and CoxCom,
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`LLC ("Defendants" or "Cox") for infringement of Plaintiffs' works that allegedly occurred by
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`unauthorized download and distribution of files using Cox's network. Plaintiffs allege both
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`contributory infringement and vicarious liability for infnngement by Cox's internet subscribers.
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`Specifically, Plaintiffs claim that Defendants are liable for infringement of 7,068 copyrighted
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`sound recordings and 3,452 copyrighted musical compositions from February 1, 2013 until
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`November 26, 2014 (“Claim Period”). Dkts. 172-1, 172-2.'
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`1.
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`BACKGROUND
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`The undisputed facts in this case are few, but certain of them will provide a framework
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`for discussion. Plaintiffs are record companies that generally produce, manage, acquire, sell, and
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`license sound recordings and musical compositions and their copyrights. Plaintiffs are part of a
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`trade association, the Recording Industry Association of America (“RIAA”). As Plaintiffs’
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`agent, RIAA hired an anti-piracy company, MarkMonitor, to scan the intemet for potentially
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`infringing file-sharing on peer-to-peer (“P2P”) networks. MarkMonitor acted as a participant in
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`the P2P networks to engage with potentially infringing users, gather data from those users, and
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`use that data to generate infringement notices. These are the notices that MarkMonitor sent to
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`Cox on behalf of Plaintiffs.
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`Defendants operate a broadband communications network and act as an intemet service
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`provider (“ISP”) to residential and commercial customers throughout the United States. To
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`monitor and address internet security issues, including copyright infringement, Cox has a
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`department aimed at abuse of its services and has adopted a policy to respond to alleged abuse of
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`its network. During the Claim Period, Cox offered a tiered pricing plan, charging different flat
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`fees for different download speeds. Also during the Claim Period, Cox received and processed
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`notices of infringement from MarkMonitor using the Cox Abuse Tracking System (“CATS”).
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`Cox programmed CATS to automate tickets to send to the subscribers identified in the notices.
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`The CATS system responded in different ways to different numbers of infringement notices.
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`' This refers to the Amended Exhibits to First Amended Complaint which are considered, collectively, as the 10,478
`works in suit.
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`essentially resulting in a thirteen-strike policy. Cox’s conduct throughout the thirteen strikes and
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`the management of these accounts is not a subject for summary judgment.
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`Plaintiffs identified individual Cox accounts that received three or more infringement
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`notices, and have established those subscribers as the basis for Defendants” liability here. This
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`parameter helped determine the 10,478 works in suit, and the four P2P networks involved:
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`BitTorrent, Gnutella, eDonkey, and Ares. This set of subscriber activity is the subject of the suit,
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`and Cox’s alleged contributory infringement and vicarious liability.
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`The Parties filed cross Motions for Summary Judgment on August 30, 2019.
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`In addition,
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`the Parties have filed, collectively, nine Dauber! motions and 21 motions in Iimine that bear on
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`many of the issues raised in the instant summaryjudgment motions. As such, the Court only
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`addresses the following, and will resolve the remaining issues either in pending pre-trial motions
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`or at trial as necessary. The two main issues the Court addresses here are (l) ownership of the
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`copyrights, and (2) the knowledge element of contributory infringement.
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`11.
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`SUMMARY JUDGMENT
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`Federal Rule of Civil Procedure 56 states that “[t]he court shall grant summary judgment
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`if the movant shows that there is no genuine dispute as to any material fact and the movant is
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`entitled tojudgment as a matter of law. The court should state on the record the reasons for
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`granting or denying the motion.” Fed. R. Civ. P. 56(a). The trial judge is not required to make
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`findings of fact at the summaryjudgment stage. “The inquiry performed is the threshold inquiry
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`of determining whether there is the need for a trial—whether, in other words, there are any
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`genuine factual issues that properly can be resolved only by a finder of fact.” Anderson v.
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`Liberty Lobby. Inc., 477 US. 242, 250 (1986). While the burden is on the moving party to
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`demonstrate entitlement as a matter of law, the opposing party “must ‘set forth specific facts
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`showing that there is a genuine issue for trial.”’ Dash v. Mayweather, 731 F.3d 303, 311 (4th
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`Cir. 2013) (quoting Bouchat v. Ball. Ravens Football Club, Inc, 346 F.3d 514, 522 (4th Cir.
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`2003)).
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`A.
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`Ownership of Copyrights in Suit
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`Before the Court is Plaintiffs’ Motion for Summary Judgment (Dkt. 312) as it pertains to
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`Plaintiffs’ claim that they “Own or Control Exclusive Rights Under Copyright for Each of
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`Plaintiffs’ Works.” Pls.’ Br. 17-19. The matter is fully briefed, and the Court heard oral
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`argument on October 24, 2019.
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`The Court granted Plaintiffs’ Motion to Strike (Mot. Dkt. 420, Order Dkt. 521) on
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`October 23, 2019, which removed from consideration the Declaration of Thomas Patrick Lane
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`on the issue of copyright validity and ownership. As the Court struck it from the record, the
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`Lane Declaration cannot support Defendants’ claims on the ownership issue. Many of
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`Defendants’ arguments are thus precluded, and, accordingly, the Court addresses the remaining
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`issues here.
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`Plaintiffs assert exclusive control of the copyrights to all works in suit, offering
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`ownership evidence including certificates of registration, registration entries from the online
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`Copyright Catalog,2 declarations from executives representing all six plaintiff groups, merger
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`and acquisition agreements, and other business agreements bearing on ownership. These are
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`discussed more specifically below in relation to Defendants’ arguments.
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`1. Legal Standard
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`To establish a claim for copyright infringement, a plaintiff must show two things: “(1)
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`ownership of a valid copyright, and (2) copying of constituent elements of the work that are
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`2 UNITED S'I‘A'I‘ES COPYRIGHT OFFICE, Public Catalog, cocatalog.loc.gov (last visited November 13, 2019).
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`4
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`original.” Feis! Pub] ’ns, Inc. v. Rural Tel. Serv. Co., Inc., 499 US. 340, 361 (1991) (citing
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`Harper & Row, Pub! ’rs, Inc. v. Nation En!ers., 471 US. 539, 548 (1985)). The matters in
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`dispute concern the first element, determining if Plaintiffs have standing to bring these claims as
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`owners of the claimed copyrights.
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`A copyright owner controls the exclusive rights enumerated in Section 106 of Title 17 of
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`the United States Code, including “(1) to reproduce the copyrighted work in copies or
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`phonorecords; .
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`.
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`. [and] (3) to distribute copies or phonorecords of the copyrighted work to the
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`public by sale or other transfer of ownership, or by rental, lease, or lending.” l7 U.S.C. § 106.
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`Ownership “initially vests in the author of a copyrighted work,” then the author “may transfer all
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`or a subset of these rights ‘by any means of conveyance or by operation of law.’” John Wiley &
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`Sons, Inc. v. DRK Photo, 882 F.3d 394, 410 (2d Cir. 2018) (quoting 17 U.S.C. § 201)). While
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`ownership naturally lies with the author of an original work, “the presumption of authorial
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`ownership fails .
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`.
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`. if the work is made ‘for hire,’ such as ‘one prepared by an employee within
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`the scope of his or her employment.” Avtec Sys. v. Pei/fir, 21 F.3d 568, 571 (4th Cir. 1994)
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`(quoting Cmty. for Creative Non- Violence v. Reid, 490 US. 730, 737-38 (1989)).
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`Although a copyright “owner’s rights exist apart from registration, see § 408(a), a
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`registration is akin to an administrative exhaustion requirement that the owner must satisfy
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`before suing to enforce ownership rights.” Fourth Estate Pub. Benefit Corp. v. Wall-Street.com.
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`LLC, 139 S.Ct. 881, 887 (2019) (internal citation omitted). Once a copyright is registered, “[a]
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`certificate of registration issued by the Copyright Office is ‘prima facie evidence of the validity
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`of the copyright and of the facts stated in the certificate, such as ownership.m Univers. Furniture
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`lnm ’1, Inc. v. Collezione Europa USA, Inc, 618 F.3d 417, 428 (4th Cir. 2010) (quoting 17 U.S.C.
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`§ 41002)).3
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`In addition to evidence of the copyright registrations, courts consider other indicia of
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`ownership. These other indicia include “the parties’ intent and the terms of transfer agreements
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`and other documents establishing a chain of title.” Univers. Furniture, 618 F.3d at 428 (citing
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`SCO Grp., Inc. v. Novell, Inc, 578 F.3d 1201, 1209 (10th Cir. 2009); AccuSoft Corp. v. Palo,
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`237 F.3d 31, 58 (lst Cir. 2001)). Such “chain[s] of title” include acquisitions of ownership as
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`well as exclusive licenses to exercise ownership rights. See Simmons v. Stanberry, 810 F.3d 1 14,
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`116 (2d Cir. 2016) (“The Copyright Act recognizes that an exclusive license is effectively a
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`transfer of ownership over the rights licensed .
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`.
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`. and exclusive licensees stand in the shoes of
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`creators for enforcement purposes, 17 U.S.C. § 201(d).). Thus, demonstrating either actual
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`ownership or exclusive license rights is sufficient to bring an infringement claim.
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`While the burden is on the Plaintiff to establish ownership as a matter of law, “mere
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`denial of these facts is not sufficient to rebut the presumption of ownership or to create a genuine
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`issue of material fact.” BMG Rights Mgmt. (US) v. Cox Commc ’ns (“BMG 1”), 149 F. Supp. 3d
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`634, 648 (ED. Va. 2015) (citing Arista Records LLC v. Lime Grp. LLC, No. 06 CV 5936, 2011
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`WL 1641978, at *4 (S.D.N.Y. Apr. 29, 2011) (“A non-movant may not rely simply on
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`conclusory statements or on contentions that the affidavits supporting the motion are not
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`credible, or upon mere allegations or denials of the nonmoving party’s pleading”) (citing Ying
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`Jing Gan v. City ofNew York, 996 F.2d 522, 532-33 (2d Cir. 1993)). A reasonable jury must be
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`able to find in favor of the nomnoving party based on the facts in the record at summary
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`3 On October 18, 2019, the Court issued an Order (Dkt. 467) granting Plaintiff’s Motion for Judicial Notice (Dkt.
`283) of copyright ownership information from the United States Copyright Office Database online as valid
`ownership evidence.
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`6
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`judgment. See Dash v. Mayweather, 731 F.3d at 31] (“If the adverse party fails to provide
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`evidence establishing that the factfmder could reasonably decide in his favor, the summary
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`judgment shall be entered ‘regardless of any proof or evidentiary requirements imposed by
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`law.”’) (quoting Bouchat v. Ball. Ravens, 346 F.3d at 522)).
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`2. Discussion
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`Defendants faced similar infringement allegations in BMG I. In that case, the Court
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`recognized four categories of ownership evidence with varying combinations of copyright
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`certificates of registration showing the plaintiffs and predecessors, and business agreements
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`showing purchase or exclusive licensing rights. BMG, 149 F. Supp. 3d at 643-44. The Court
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`finds no reason to alter its positions on its various findings in BMG — as ownership was not a
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`discrete issue on appeal in BMG, the Fourth Circuit did not disturb these findings.4 The parties
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`in this case aptly present new arguments.
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`a) Plainlifls ’Assertion ofOwnership, and Evidence in Support
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`There are fifiy-three plaintiffs remaining in this case, broken into six sub-groups.
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`Plaintiffs present ownership evidence through declarations for each of those six sub-groups.S As
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`a general matter, Plaintiffs assert that they “protect their copyrights, including through
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`registration with the US. Copyright Office and by entering into written agreements through
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`which they own or control exclusive rights under copyright." Pls.’ Br. 4 (citing Blietz Decl.1l 5|
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`‘ Some findings related to ownership evidence include: (I) merger and acquisition agreements are admissible to
`show ownership; (2) the chain of title need not trace back to the author instead of the original claimant; and (3) the
`agreements are not required to list the specific copyrights acquired if the agreement otherwise conveys ownership
`rights by operation of law. See BMG, 149 F. Supp. 3d at 645-46.
`5 The Sony Music Plaintiffs account for 3,231 sound recordings through the Leak Declaration, Pls.’ Br. Ex. 3; the
`SATV-EMI Plaintiffs account for 1,139 musical compositions through the Patel Declaration, Pls.’ Br. Ex. 4; the
`Warner Music Plaintiffs account for 1,307 sound recordings through the Poltorak Declaration, Pls.’ Br. Ex. 5; the
`Warner Chappell Plaintiffs account for L330 musical compositions through the Blietz Declaration, Pls.‘ Br. Ex. 10;
`UMPG Plaintiffs account for 1,087 musical compositions through the Kolkakis Declaration, Pls.’ Br. Ex. 8; and the
`UMG Plaintiffs account for 2,230 sound recordings through the McMullan Declaration, Pls.’ Br. Ex. 9.
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`7
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`Kokakis Decl. 1] 5; Leak Dec]. 1] 4; McMuIIan Decl. 1] 4; Patel Decl. 1| 4; Poltorak Decl. 1i 4).
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`Specifically, the declarations are supported by certificates of registration, excerpts from the US.
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`Copyright Catalog showing registration, merger and acquisition agreements and related contracts
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`that bear on copyright ownership.6
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`As such, Plaintiffs claim to have demonstrated enough ownership evidence to shift the
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`burden to Defendants to produce evidence to the contrary. For the vast majority of the works in
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`dispute, discussed below, the Court agrees that Plaintiffs have established a presumption of
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`ownership. The main question at bar is thus whether Defendants have shown genuine issues of
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`material fact to survive summaryjudgment. See Matsushita Elec. Indus. Co., Ltd. v, Zenith
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`Radio Corp, 475 US. 574, 585-86 (1986) (noting that to survive summaryjudgment, “the issue
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`of fact must be genuine”) (internal citation omitted).
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`b) Analysis ofDefendants ’ Challenges
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`Defendants do not object to the evidence as broadly as they did in BMG 1. Rather,
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`though Plaintiffs moved for summary judgment on 10,100 works,7 the ownership evidence in
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`dispute is limited to the following: 8
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`1.
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`2.
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`1,715 works where the evidence is limited to the online Copyright Catalog;
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`129 works registered more than five years afier the first publication;
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`3. “Hundreds” of works where Plaintiffs rely on declarations and are missing documentary
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`proof of an ownership transaction;
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`4. 238 individual sound recordings (“singles”) registered as works made for hire;
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`5. 78 works registered afier the Claim Period, precluding statutory damage recovery.
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`" Plaintiff has submitted by hard drive [5.313 files in 1,620 folders in support of the ownership claim. Due to this
`volume, it is unreasonable for the Court to review each one. The Court will focus on those that the parties have
`identified in their briefs as in dispute.
`7 Defendants' say Plaintiffs claim 10.478 works in the case, but that they move for Summary Judgment on hundreds
`fewer (Defs.‘ Opp‘n 23 n. l4), citing the Amended Exhibits to First Amended Complaint (Dkts. I36, 172- l, l72-2).
`Plaintiffs’ Reply then refers to 10,100 works in suit. Pls.’ Reply 8. The Court adopts the [0,100 total.
`3 Some of the works in suit are subject to multiple of Defendants’ objections such that the categories of works listed
`in Plaintiffs’ Reply brief exceed the total number of works in dispute: [29 noted as registered more than five years
`after publication; l,209 works with missing chain of title documents; 122 agreements with potentially invalid terms;
`54 supporting documents produced to Cox alter discovery period closed; 238 works registered as “made for hire;”
`78 works registered alter the claim period.
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`

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`Defs.’ Opp’n at 24-26.
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`The Court will address each of Defendants’ objections in turn.
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`(1)
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`Co
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`ri
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`t Catalo ) Alle ed to be the On] Ownershi Evidence
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`To begin, the Court granted Plaintiffs’ Motion for Judicial Notice, which moots most of
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`this first argument.9 The registration information from the Copyright Catalog shores up well
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`over one thousand of Plaintiffs’ ownership claims. Further, while Defendants claim that the
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`online Copyright Catalog print-outs are the “only evidence of ownership” for approximately
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`1,715 works, this is based on the allegation that the print-outs are the only documentary
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`evidence. Whether or not that is true, this assertion necessarily assumes that the Plaintiffs”
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`declarations are inadmissible as ownership evidence. The Court finds this assumption to be
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`mistaken.
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`Written documentation is not the only acceptable form of ownership evidence. Armento
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`v. Laser Image. Inc., 950 F. Supp. 719, 734 (W.D.N.C. 1996) (considering parties’ actions to
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`support ownership claim, and citing the plaintiff’s affidavit in so doing). Uncontroverted
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`testimony is valid ownership evidence, and can supplement the registration information to
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`establish a presumption of ownership. See X-lt Prods, L.L. C. v. Walter Kidde Portable Equip,
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`Inc.. 155 F. Supp. 2d 577, 604 (ED. Va. 2001) (regarding oral assignment of copyrights, finding
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`standing according to “unchallenged affidavits” and associated assignment agreements); Donald
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`A. Gardner Architects, Inc. v. Cambridge Builders, Inc, 803 F. Supp. 2d 373, 378 (E.D.N.C.
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`201 l) (“Plaintiffs have also submitted deposition testimony and sworn declarations of the
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`9 See supra note 3.
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`architects who created the home designs, averring that the designs are their original
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`creations”). '0
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`Cox points to a lack of supplemental evidence, but, as stated before, “mere denial of these
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`facts” is not enough at this point in the litigation. BMG, 149 F. Supp. 3d at 648. Accordingly,
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`the registration print-outs are not the “only evidence of ownership” before the Court, and
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`Defendants’ arguments targeting the sufficiency of Copyright Catalog registrations are
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`effectively moot.”
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`(2)
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`Registrations Dated More than Five Years After Publication.
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`Second, the fact that there are copyrights for which the registration is dated more than
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`five years after publication of the work does not preclude Plaintiffs from supplementing that
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`ownership evidence with “other relevant indicia of ownership.” Univers. Furniture, 618 F.3d at
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`428. Indeed, regardingjudicial proceedings, “the certificate of a registration made before or
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`within five years after first publication of the work shall constitute prima facie evidence of the
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`validity of the copyright and of the facts stated in the certificate.” 17 U.S.C. § 410(c). But the
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`statutory provision allowing Courts to recognize certain evidence does not, ipsofacto, preclude
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`later registrations as irrelevant. The registrations are relevant. The six plaintiff groups also
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`submit uncontroverted testimony in support of these copyrights. Defendants’ claim that
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`‘0 The Court recognizes that case law here may be referring to certificates of registration rather than the Copyright
`Catalog, but does not find that there is a material difference given the evidence at issue.
`" Plaintiffs’ Reply responds to Defendants’ contention that there are 54 documents that were produced after the
`discovery period closed, 52 of which seem to be registrations. Pls.’ Reply l4. Defendants do not raise these
`documents in their Opposition, and they likely originate from the Lane Declaration now stricken from the record.
`Furthermore, a discovery dispute of this nature is properly brought to Magistrate Judge Anderson. The parties fully
`briefed and argued before Judge Anderson a Motion for Discovery Sanctions and to Preclude Plaintiffs‘ Use of
`MarkMonitor Evidence (Dkt. 237) while this ownership argument was relevant. As far as the Court is aware,
`Defendant did not raise it. The Court will not at this time disturb ownership discovery that has been included in the
`record thus far on the basis of late production.
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`10
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`Plaintiffs failed to further substantiate ownership for 129 works thus fails for the same reasons
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`stated above.
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`(3]
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`Allegedly Insufficient Chain of Title Evidence.
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`Third, Cox argues that there are missing chain of title documents for what Plaintiff
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`characterizes as 1,209 works. The Parties break these down into several categories, including
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`those with alleged facial deficiencies and lack of documentation for certain name changes,
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`mergers, and acquisitions.”
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`The writing requirement to execute a transfer of copyright ownership is not absolute. See
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`17 U.S.C. § 204(a) (“A transfer of copyright ownership, other than by operation oflaw, is not
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`valid unless an instrument of conveyance .
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`.
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`. is in writing and signed”) (emphasis added). As
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`Plaintiffs state, “[n]ot every fact needs a document.” Pls.’ Reply 1 1. To hold otherwise when
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`considering thousands of copyrights subject to corporate agreements would be unreasonable and
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`contrary to governing law. See Univers. Furniture, 618 F.3d at 429 (citing § 204(a)); BMG, 149
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`F. Supp. 3d at 646 (collecting cases). Furthermore, “when there is no dispute between the
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`original copyright owner and his licensee or assignee, ‘it would be anomalous to permit a third-
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`party infringer to invoke this [writing] provision against the licensee.’” X-lt Prods, 155 F. Supp.
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`2d at 604 (quoting Eden Toys, Inc. v. Florelee Undergarment Co, 697 F.2d 27, 37 (2d Cir.
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`1982)).
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`Once again, Cox demands documentation and ignores fact testimony from business
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`representatives with extensive personal knowledge of the relevant business agreements and
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`'3 Cox’s also points to 49 instances where Plaintiffs erroneously cited to the wrong certificate for the works in its
`briefing. Similar to the 54 documents allegedly produced afler discovery, discussed supra note 11, the Court notes
`that Defendants did not argue this in Opposition. To the extent that these copyrights are in dispute because of the
`now stricken Lane Declaration, the Court need not address an objection. Even if the works were under scrutiny, the
`Court understands Defendants‘ arguments to be that the claimed copyrights are improperly supported, not that they
`are unregistered or otherwise invalid.
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`ll
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`associated copyright ownership status. Further, any disputes related to the quality of reproduced
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`documents are insignificant at this stage, and that evidence will be admitted.
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`Cox has not shown, affirmatively, a likelihood that the substance of proffered ownership
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`evidence is incorrect, or that it cannot plausibly connect Plaintiffs to the works. The Court
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`believes that Cox has had ample opportunity to do so.
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`(4)
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`Sound Recordings Registered as “Works for Hire”
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`Cox contends there are 238 individual sound recordings in suit improperly registered as
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`“works for hire.” Cox summarily states that “these registrations must be deemed invalid and
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`insufficient to sustain Plaintiffs’ burden of proof.” Defs.’ Opp’n 25. Plaintiffs counter that the
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`“work for hire” notation does not render the registration evidence invalid. Rather, Plaintiffs note
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`once more that a certificate of registration is prima facie evidence of the validity of the facts
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`therein, and that Cox “has not offered evidence that any alleged error was made knowingly or
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`with an intent to defraud the Copyright Office.” Pls.’ Reply 16.
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`As the nonmovant in this instance, Cox does not offer the evidence required to rebut the
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`presumption of validity of the registration certificate. Regardless of whether Plaintiffs offer
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`evidence that the works were created by employees of the record company, the Court cannot
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`ignore that Cox fails to offer any evidence to combat the substance of the certificates. Cf MOB
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`Music Pub] ’g v. Zanzibar on the Waterfront. LLC, 698 F. Supp. 2d 197, 204 (D.D.C. 2010)
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`(“Defendants’ idle assertions regarding the possibility that these Bob Marley songs were
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`improperly registered as ‘works for hire’ - as well as defendants other unsupported evidentiary
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`complaints — are simply insufficient to create a genuine issue of material fact as to plaintiffs’
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`ownership of the songs”).
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`Further, settled law across circuits states that inaccurate registrations are not invalidated
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`without evidence that the inaccuracy was both material and made in bad faith.
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`In other words,
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`12
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`“the inaccurate information must have been included in the application .
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`.
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`. ‘with knowledge that
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`it was inaccurate’ and ‘the inaccuracy of the information, if known, would have caused the
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`Register of copyrights to refuse registration.”’ Gold Value In! ’1 Textile, Inc. v. Sanctuary
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`Clothing, LLC, 925 F.3d 1140, 1146 (9th Cir. 2019) (quoting 17 U.S.C. § 411(b)(1));see also
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`Jedson Eng ’g, Inc. v. Spirit Const. Svs.. Inc., 720 F. Supp. 2d 904, 914 (SD. Oh. 2010) (“Neither
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`innocent misstatements, nor deliberate, but nonmaterial misstatements, will overcome the
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`presumption of validity.”) (quoting Tacori Enters. v. Rego Mfg, No. 1:05cv2241, 2008 WL
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`4426343, at *14 (N .D. Oh. Sept. 25, 2008) and Shady Records, Inc. v. Source Enters, Inc., No.
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`03 Civ. 9944(GEL), 2005 WL 14920, at *8 (S.D.N.Y. Jan. 3, 2005)).
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`Defendants in their Opposition maintain that “Plaintiffs’ misrepresentations were
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`knowing and intentional.” Defs.’ Opp’n 25 n.19. To shore up this claim, Defendants submit just
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`one argument, in a footnote: that the “work made for hire” notations on the registrations must
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`invalidate the registrations because of certain knowledge of legislative history. '3 In short,
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`Defendants claim that a legislative controversy twenty years ago is automatically and
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`comprehensively imputed to Plaintiffs’ state of mind, and that it is dispositive here.
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`The Court disagrees. When the record can only support a finding that technical errors in
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`registrations are inadvertent and immaterial, they are “of the type that does not render a
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`registration invalid for the purpose of § 411(a).” Huthwaite, Inc. v. Sunrise Assisted Living,
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`Inc., 261 F. Supp. 2d 502, 510 (ED. Va. 2003) (citing Bouchat, 241 F.3d at 357). A reference to
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`past legislation and repeal, without facts specific to Plaintiffs, falls well short of raising a
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`genuine issue of material fact.
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`'3 Specifically, the repeal of “sound recording” as it relates to “work made for hire” in § 101 of the Copyright Act.
`Work Made for Hire and Copyright Corrections Act of 2000, Pub. L. No. 106—379, § 1, 114 Stat. 1444 (2000). The
`Court does not hesitate to consider the importance of legislative changes when they are material to the litigation and
`fully briefed; here we have neither.
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`l3
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`(5)
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`Registrations Dated After Alleged Infringement
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`Finally, Defendants claim there are 78 works in suit that were registered after the alleged
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`infringement, precluding Plaintiffs from recovery pursuant to Section 412 of the Copyright Act.
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`Section 412 reads:
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`. an action for the infringement of
`.
`In any action under this title .
`the copyright of a work that has been preregistered under section
`408(0 before the commencement of the infringement and that has
`an effective date of registration not later than the earlier of 3
`months afier the first publication of the work or 1 month afier the
`copyright owner has learned of the infringement .
`.
`. no award of
`statutory damages or attomey’s fees .
`.
`. shall be made.
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`17 U.S.C. § 412. It is true that “[u]pon registration of a copyright .
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`.
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`. a copyright owner can
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`recover for infringement that occurred both before and afier registration,” but infringement
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`before registration can only support a claim for statutory damages if the owner has preregistered
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`the copyright and the registration takes effect within three months of the first publication.”
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`Fourth Estate, 139 S.Ct. at 886-87.
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`Plaintiffs do not dispute that these 78 registrations were issued outside of the statutory
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`time frame and they make no legal argument for statutory damages related to these works.
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`Therefore, these 78 works are improper as a basis for statutory damages, and Plaintiffs will not
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`be permitted to present evidence at trial that is unique to these works.
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`Plaintiff has shown sufficient ownership evidence, and Defendants have failed, in most
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`instances, to rebut Plaintiffs’ claims with evidence to create a genuine issue of material fact. The
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`Court intends for this holding to apply to 10,022 works; specifically, the Court grants summary
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`judgment on all 10,100 works referenced in Plaintiffs’ Reply brief, except for the 78 works
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`discussed above as ineligible for suit because of late registration. For the reasons stated herein,
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`” Or, per Section 412, registration may have to take effect sooner if the owner learns of the infringement.
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`l4
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`Plaintiffs’ motion for summary judgment on copyright ownership is hereby GRANTED with the
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`exclusion of those works registered late. Copyright ownership for the works in suit is not an
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`issue for trial. '5
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`B.
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`Knowledge, as Applied to Contributory Infringement
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`Plaintiffs also submit their Motion for Summary Judgment (Dkt. 312) to establish, in part,
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`that Defendant Cox is liable for contributory infringement because Cox had knowledge of
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`infringement. Pls.’ Br. IV.A. Defendants, in their cross Motion for Summary Judgment (Dkt.
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`328), ask the Court to find (1) there can be no liability for claims where Plaintiffs’ notices failed
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`to identify certain works in suit, and (2) there can be no liability arising from Cox Business
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`subscribers due to insuff