United States District Court, S.D. New York
OPINION AND ORDER
THOMAS P. GRIESA, District Judge.
In a September 29, 2014 decision ("the SJ Decision"), the court granted summary judgment to plaintiffs in this copyright infringement action. A jury trial on statutory damages is scheduled to begin April 27, 2015.
Before the court are five motions in limine filed by plaintiffs, and three motions in limine filed by defendants. The court addresses some, but not all, aspects of the pending motions in this decision.
For the reasons that follow, the motion in limine pending at Docket No. 155 is granted. The motions in limine pending at Docket Nos. 121, 124, and 135 are granted in part. The motions in limine pending at Docket Nos. 141 and 145 are denied. The court reserves judgment on the motions in limine pending at Docket Nos. 127 and 143.
The court assumes the parties' familiarity with the facts of the case, and with the record supporting the court's ruling at summary judgment. The court briefly recapitulates those facts here for purposes of resolving the pending motions in limine.
In the SJ Decision, the court first noted that the claims at issue relate only to certain copyrighted sound recordings (the "Works in Suit") uploaded by Escape Media Group, Inc. ("Escape") employees to a music streaming service called "Grooveshark, " but do not implicate "infringement by users of the Grooveshark service in general." (SJ Decision at 15.) The court also rejected defendants' affirmative defenses of statute of limitation, laches, estoppel and waiver based on the timing of this action's commencement, holding that "plaintiffs promptly filed suit [in November 2011] against defendants three months after learning of the employee uploads" through discovery in a related action in state court. (Id. at 39-42.)
The court then granted summary judgment in favor of plaintiffs, finding the defendants liable for copyright infringement with respect to the Works in Suit. In so ruling, the court found that: (1) Escape was directly liable for the infringing uploads of its employees, because the record included "uncontroverted evidence that defendants instructed their employees to upload copyright protected music onto Grooveshark"; and (2) Escape was secondarily liable for these infringements under theories of vicarious infringement, inducement of infringement, and contributory infringement. (Id. at 47-54.) The court stated that "by overtly instructing its employees to upload as many files as possible to Grooveshark as a condition of their employment, Escape engaged in purposeful conduct with a manifest intent to foster copyright infringement via the Grooveshark service." (Id., at 53.)
The court also found that defendants Tarantino and Greenberg-the co-founders of Grooveshark-were jointly and severally liable for Escape's infringement, and were also liable for direct infringement based on their own infringing uploads. (Id. at 54-56.) And, the court sanctioned defendants for willfully deleting relevant upload data and records "in bad faith" and "with a culpable state of mind, " which precluded plaintiffs and the court from determining "the full scope and scale of Escape's piracy campaign." (Id. at 25-32.) The court therefore drew an adverse inference against defendants, based on the deleted evidence, that an additional 1, 944 sound recordings were infringed.
In advance of trial, the parties have entered into a stipulation identifying 2, 963 recordings that are at issue, in addition to 1, 944 employee uploads inferred by the court as a result of defendants' spoliation of evidence. There are thus 4, 907 specific recordings in the Works in Suit.
I. Applicable Law
A. Statutory Damages Under the Copyright Act
Plaintiffs have chosen to pursue statutory damages at the upcoming trial. Section 504(c) of the Copyright Act allows a plaintiff to elect to recover statutory damages "instead of actual damages and profits." 17 U.S.C. § 504(c)(1). For each infringed work, "statutory damages may be awarded in the range of $750 to $30, 000, but if the copyright owner proves that the infringement was committed willfully, the damages may be enhanced up to $150, 000." HarperCollins Publishers LLC v. Open Rd. Integrated Media, LLP, No. 11 CIV. 9499 (NRB), 2014 WL 5777929, at *5 (S.D.N.Y. Nov. 6, 2014) (citing 17 U.S.C. §§ 504(c)(1)-(2)). Such damages "serve the dual purpose of compensating the plaintiff for an injury and discouraging a defendant's wrongful conduct." EMI Apr. Music Inc. v. 4MM Games, LLC, No. 12 CIV. 2080 (DLC), 2014 WL 325933, at *3 (S.D.N.Y. Jan. 13, 2014), report and recommendation adopted, No. 12 CIV. 2080 (DLC), 2014 WL 1383468 (S.D.N.Y. Apr. 7, 2014) (internal citations omitted).
In 2010, the Second Circuit identified six factors to be considered when setting the amount of statutory damages: "(1) the infringer's state of mind; (2) the expenses saved, and profits earned, by the infringer; (3) the revenue lost by the copyright holder; (4) the deterrent effect on the infringer and third parties; (5) the infringer's cooperation in providing evidence concerning the value of the infringing material; and (6) the conduct and attitude of the parties." Bryant v. Media Right Productions, Inc., 603 F.3d 135, 144 (2d Cir. 2010). The Second Circuit has recently reaffirmed this six-factor test. See Psihoyos v. John Wiley & Sons, Inc., 748 F.3d 120, 126-27 (2d Cir. 2014) (citing Bryant, 603 F.3d at 143-44). In so ruling, the Second Circuit added: "Although revenue lost is one factor to consider, we have not held that there must be a direct correlation between statutory damages and actual damages. To suggest otherwise is to ignore the various other factors a court may consider and the purposes of statutory damages in the willful infringement context." Id.
B. Motions in limine
"The purpose of an in limine motion is to aid the trial process by enabling the Court to rule in advance of trial on the relevance of certain forecasted evidence, as to issues that are definitely set for trial, without lengthy argument at, or interruption of, the trial." Palmieri v. Defaria, 88 F.3d 136, 141 (2d Cir. 1996) (internal quotation marks omitted); accord Highland Capital Mgmt., L.P., v. Schneider, et al., 551 F.Supp.2d 173, 176 (S.D.N.Y. 2008).
"In its role as gatekeeper, this court must balance a number of competing considerations, including relevance, probative value, unfair prejudice and confusion of the issues." Island Intellectual Prop. LLC v. Deutsche Bank AG, No. 09 CIV. 2675 (KBF), 2012 WL 526722, at *3 (S.D.N.Y. Feb. 14, 2012) (citing Fed.R.Evid. 401, 402, 403). Additionally, under Federal Rule of Civil Procedure 56(g), a court can determine that certain facts are established and forbid parties from contesting those facts at trial. See Berbick v. Precinct 42, 977 F.Supp.2d 268, 275 (S.D.N.Y. 2013). However, evidence should not be excluded on a motion in limine unless such evidence is "clearly inadmissible on all potential grounds." Nat'l Union Fire Ins. Co. of Pittsburgh, Pa. v. L.E. Myers Co. Grp., 937 F.Supp. 276, 287 (S.D.N.Y. 1996) (citation omitted). A court's ruling on such a motion is "subject to change when the case unfolds, particularly if the actual testimony differs from what was contained in [a party's] proffer." Luce v. United States, 469 U.S. 38, 41 (1984).
With the above case law in mind, the court turns to the ...