293 F.R.D. 682
S.D.N.Y.2013Background
- AFP and Getty moved to preclude Morel from DMCA statutory damages for more than 16 violations and to limit damages theory.
- Morel previously disclosed two types of DMCA violations (false CMIR and removal/alteration of CMIR) at $25,000 per type, per photograph (initially 13 photos, now 8).
- Morel did not update Rule 26 damages computation after discovery to reflect a theory of 527 violations.
- Defendants argued the 527-violation theory would require reopening discovery and prejudicing them.
- Court found Morel violated Rule 26(a)/(e) by not updating damages computation and that sanctions were appropriate.
- Court precludes Morel from seeking more than 16 DMCA violations (two per photograph); reserved ruling on per-violation vs. single-damages interpretation of the DMCA.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| DMCA damages disclosure violation | Morel argues information underlying new theory was disclosed through discovery; no need to amend | Defendants were prejudiced by late disclosure and discovery would need reopening | Plaintiff sanctioned; preclusion of new damages theory (limited to 16 violations) |
| Appropriateness of sanction | Argues no substantial justification or harmlessness; discovery information excuse | Prejudice and late disclosure warrant sanctions | Sanctions appropriate; preclusion imposed |
| DMCA damages interpretation (per-violation vs single award) | DMCA allows multiple violations, potentially many statutory awards | DMCA may allow only one per the court's reading; complex issue | Court reserves ruling on interpretation; not addressed due to Rule 26/37 sanction ruling |
| Whether evidence of conduct can be admitted for purposes other than DMCA violations | Evidence of transmission/licensing relevant to facts | Evidence cannot be used to inflate number of DMCA violations | Not addressed beyond sanction ruling; evidence may be admitted for other permissible purposes |
Key Cases Cited
- Design Strategy, Inc. v. Davis, 469 F.3d 284 (2d Cir. 2006) (damages disclosures and supplementation duties; sanctions for failure)
- Agence France Presse v. Morel, 934 F. Supp. 2d 547 (S.D.N.Y. 2013) (discretion to preclude damages theory for Rule 26 violations; sanctions warranted)
- Psihoyos v. Pearson Educ., Inc., 855 F. Supp. 2d 103 (S.D.N.Y. 2012) (considerations for late disclosure and prejudice)