‘Oil Daily’ Publisher Owes More Damages in Copyright Case
Written February 10, 2020
Failure to mitigate is not a complete defense to copyright or DMCA claims for statutory damages, held the US Court of Appeals for the Fifth Circuit on January 15, 2020. Energy Intelligence Group Inc. v. Kayne Anderson Capital Advisors LP, 5th Cir., No. 18-20350, 1/15/20.
Energy Intelligence Group Inc.'s failure to mitigate its damages shouldn’t have affected the amount of statutory damages it was entitled to, the appeals court said. A Kayne Anderson Capital Advisors LP (KA) partner purchased a subscription to EIG’s “Oil Daily” newsletter and violated EIG’s subscription agreement and copyright law by sharing his access with other KA employees.
A jury awarded EIG only $585,000 of its requested $26 million in statutory damages, finding KA was only liable for infringing 39 of the 1,646 copyrights at issue because EIG failed to mitigate its damages. The Fifth Circuit vacated the verdict because the duty to mitigate only applies to consequential damages.