On January 15, 2020, the Fifth Circuit issued its decision in Energy Intelligence Group, Inc. v. Kayne Anderson Capital Advisors (available here). In the case, the defendant infringed the plaintiff’s copyrights by improperly forwarding certainly daily newsletters to others outside of the scope of the defendant’s subscription. The defendant relied on a mitigation defense, pointing out that the plaintiff learned of the defendant’s infringement seven years before filing suit “but did nothing to investigate or dissuade [plaintiff]” and “knew that many of its subscribers improperly distributed its newsletters but consciously declined to crack down on such sharing because litigating copyright claims against large clients was more profitable.” The district court allowed the defendant to proceed with this mitigation defense.
At trial, the defendant persuaded the jury that the plaintiff could reasonably have avoided almost all of the copyright violations at issue (i.e., 1,607 out of 1,646 acts of infringement), and the defendant took nothing for those violations. This presented an issue of first impression on appeal—i.e., whether failure to mitigate can be a complete defense to liability for statutory damages under the Copyright Act. The Fifth Circuit held that failure to mitigate is not a complete defense to copyright statutory damages. Instead, the jury may appropriately consider mitigation in determining the amount to award in statutory damages.