421 F.Supp.3d 1051
D. Colo.2019Background
- Plaintiff Live Face On Web, LLC (LFOW) develops a registered copyrighted software (LFOW Code) that generates a "Virtual Greeter" video for websites; dispute concerns Version 7.0.0.
- Defendant Integrity Solutions Group bought a virtual greeter from third parties (Tweople/Yakking Heads) and had its web developer (10 Pound Gorilla) install the software on Integrity’s site.
- LFOW sued (June 24, 2016) for copyright infringement; a jury trial in October 2018 returned a verdict for LFOW awarding $262,197 in actual damages.
- Post-trial motions included Integrity’s Rule 50(b) renewed JMOL, Rule 59 new trial/remittitur, and a motion for a protective order; LFOW moved for prejudgment interest and attorneys’ fees/full costs.
- The court denied Integrity’s post-trial relief, awarded prejudgment interest ($54,499) and granted LFOW’s request to recover attorneys’ fees and full costs (subject to a fee petition due Nov. 1, 2019).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Copying (access element) | LFOW: access shown because YakkingHeads/affiliate had LFOW Code and 10 Pound Gorilla/Integrity used that software to install on defendant site. | Integrity: no evidence Integrity itself copied; CEO merely forwarded download link to developer—insufficient for copying. | Court: substantial evidence of access via YakkingHeads/10 Pound Gorilla; Rule 50(b) JMOL denied. |
| Distribution / volitional conduct | LFOW: jury instruction (access + substantial similarity) was proper; no separate volition element required here. | Integrity: direct liability requires volitional conduct (citing online/cable provider cases). | Court: volitional-conduct requirement inapplicable here (not an ISP/platform case); no jury instruction error; argument rejected. |
| Damages — "actual use" / remittitur | LFOW: presented licensing evidence and expert opinion showing Integrity’s use matched monthly-license uses; jury award within range. | Integrity: damages should reflect Integrity’s actual (one-time $259) use; evidence of other licensees’ different uses is irrelevant; verdict excessive. | Court: defendant failed to preserve some Rule 50(a) issues; evidence sufficed for jury to award damages; remittitur/new trial denied. |
| Exclusion of Ms. Miracle’s demonstrative | Integrity: demonstrative compared LFOW Code to internet code; jury should see side-by-side comparison. | LFOW: demonstrative altered/dated content and would mislead; inadmissible hearsay. | Court: demonstrative excluded (would mislead); expert testimony allowed; exclusion not reversible error—no new trial. |
| Patent application / copyright misuse defense | Integrity: patent application evidence relevant to copyright misuse/uncopyrightability; requested jury instruction. | LFOW: no evidence of monopoly/anticompetitive conduct; merger doctrine/instruction already covered. | Court: patent app not probative of misuse; insufficient evidence of misuse or monopoly; instruction struck; no new trial. |
| Authentication of Internet Archive printouts | LFOW: authenticated by LFOW CEO testimony and circumstantial indicia; admitted. | Integrity: printouts unverified and unreliable; admission prejudiced case. | Court: Rule 901 standards satisfied (witness testimony + distinctive indicia); alterations immaterial (time/date tags); admission affirmed. |
| Protective order / stay of post-judgment discovery | LFOW: post-judgment discovery may proceed. | Integrity: sought protective order staying discovery pending post-trial motions/appeal. | Court: denied protective order; no good cause. |
| Prejudgment interest | LFOW: seeks prejudgment interest (Colorado statutory rate or prime rate); damages span 8/25/2010–10/5/2018. | Integrity: disputes start date and proper rate; suggests waiting for appeals/resolution. | Court: awards prejudgment interest at prime rate: $54,499 from Aug. 25, 2010 to Oct. 5, 2018. |
| Attorney fees and full costs under 17 U.S.C. § 505 | LFOW: seeks fees/full costs—Defendant advanced objectively unreasonable positions and engaged in litigation misconduct (protective-order breach, Rule 30(b)(6) failures). | Integrity: disputes reasonableness and requests stay pending appeal; defends its litigation positions. | Court: LFOW is prevailing party; awarded fees and full costs (LFOW to file fee petition by Nov. 1, 2019); misconduct and unreasonable positions weighed heavily. |
Key Cases Cited
- Tyler v. RE/MAX Mountain States, Inc., 232 F.3d 808 (10th Cir.) (standard for reviewing Rule 50 motions)
- Webco Indus., Inc. v. Thermatool Corp., 278 F.3d 1120 (10th Cir.) (substantial-evidence standard for JMOL)
- Finley v. United States, 82 F.3d 966 (10th Cir.) (JMOL appropriate only if evidence points one way)
- United Int'l Holdings, Inc. v. Wharf (Holdings) Ltd., 210 F.3d 1207 (10th Cir.) (Rule 50 preservation requirement)
- Cartoon Network LP v. CSC Holdings, Inc., 536 F.3d 121 (2d Cir.) (discussing volitional-conduct issues for service providers)
- Perfect 10, Inc. v. Amazon.com, Inc., 508 F.3d 1146 (9th Cir.) (volitional-conduct considerations for search/caching contexts)
- Kirtsaeng v. John Wiley & Sons, Inc., 136 S. Ct. 1979 (U.S.) (framework and emphasis on objective reasonableness for § 505 fee awards)
- Isabella, 918 F.3d 816 (10th Cir.) (authentication standard for electronic evidence)
- Farrar v. Hobby, 506 U.S. 103 (U.S.) (prevailing party definition for fee eligibility)