Grande's Infringement 'Willful,' Says UMG's Reply in Support of More Fees

Grande Communications should be required to pay plaintiffs’ attorneys’ fees of $5.2 million, plus $7.4 million in prejudgment interest and about $200,000 in expert costs on the jury’s verdict that Grande’s copyright infringement was “willful,” said the record labels’ reply in support of their motion for fees and interest (docket 1:17-cv-00365), filed Thursday in U.S. District Court for Western Texas in Austin. Grande filed an opposition motion March 12 for Universal Music Group’s and other labels’ request for an additional $13 million recovery, after they were awarded a “windfall $46.8 million” in statutory damages. There was evidence at trial that plaintiffs’ actual damages were “far less” than the $47 million that was awarded, Grande said in the motion, saying UMG didn’t offer any evidence of the value of its 1,400 copyrighted songs, such as revenue figures from sales or statistics about the volume or frequency with which songs were sold or streamed. In their reply, music labels said Grande “tries to avoid the impact of the jury’s finding” by arguing the court “softened” the jury instruction on willfulness such that the verdict “does not reflect Grande’s intent to infringe.” Grande’s argument is “legally baseless” and “simply wrong as a matter of fact,” said the reply. The jury said Grande “knew its subscribers were engaging in copyright infringement and continued providing them the services necessary to infringe anyway,” it said. Those findings “powerfully support the finding of willfulness and an award” of plaintiffs’ legal fees, it said. The reply cited Kirtsaeng v. John Wiley & Sons, in which the Supreme Court instructed courts to consider “the totality of circumstances in a case,” including a party’s “litigating position," when considering a fee application. “That inquiry necessarily includes a party’s defenses and conduct at all stages of litigation,” the reply said, saying otherwise, a defendant could assert meritless defenses pre-trial in an effort to “impose needless costs and slow down litigation, yet face no consequences for its unreasonable actions if it took relatively less unreasonable positions at trial.” That’s “exactly what Grande did” by alleging a Digital Millennium Copyright Act safe harbor defense “despite knowing it had no policy to terminate the accounts of repeat infringing subscribers for seven years.”