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1: Fifth Circuit Holds Failure to Mitigate is No Bar to Statutory Damages Under Copyright Act

First off today, Om V. Alladi at the National Law review reports that the Fifth Circuit Court of Appeals has ruled that a plaintiff’s failure to mitigate a copyright infringement does not preclude them from receiving statutory damages.

The case pits Energy Intelligence Group (EIG) against a subscriber of their newsletter, Kayne Anderson Capital Advisors (KA). KA would routinely forward the subscription-only newsletter to non-subscribers, prompting EIG to sue. However, KA argued that EIG knew about the forwarding for years and failed to take any action. In cases where a plaintiff seeks actual damages, this failure to mitigate can result in a reduction or even elimination of damages awarded. However, EIG was seeking statutory damages and the 5th Circuit became the first appeals court to rule on that particular issue.

To that end, the appeals court overturned a lower court ruling that said the failure to mitigate eliminated statutory damages. While it may still be a factor in setting the damages awarded, it is not a “complete defense” to a claim for statutory damages. The decision was unanimous with the three-judge panel and the ruling sends it back to the lower court, where the case will continue.

2: Nicki Minaj Sued for Posting Photos of Herself to Instagram

Next up today, Blake Brittain at Bloomberg Law reports that Nikki Minaj has been sued for copyright infringement by Splash News & Picture Agency over photos she posted to her Instagram account.

The complaint, which says that photos taken of Minaj taken at public appearances were used on her Instagram account in 2017 and 2018. They claim that they notified her of the infringement shortly after they were posted though no action was taken.

The agency is seeking injunctive relief, damages and attorneys’ fees. The complaint claims that the infringement is “expressly commercial”, noting that Minaj uses her Instagram to promote her various business interests.

3: RomUniverse’s Request to Dismiss Nintendo Piracy Lawsuit Fails

Finally today, Ernesto at Torrentfreak writes a California federal court has denied RomUniverse’s motion to dismiss, allowing the lawsuit filed by Nintendo to continue.

RomUniverse is a website that allows users to download pirated games, books and movies. They were sued by Nintendo for offering unauthorized copies of games that they hold the copyright to. RomUniverse attempted to argue that they were protected under the Digital Millennium Copyright Act (DMCA) safe harbor provisions and that the case should be dismissed. However, the judge in the case decided that this was not the appropriate time to hear those arguments and is allowing the case to move forward.

RomUniverse further tried to get the dismissal on other grounds including jurisdiction, failure to state a claim and other technicalities. However, the judge rejected all of those arguments as well and is allowing the case to move forward. Matthew Storman, the operator of the site, has chosen to defend himself in the case.

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