EIG, publisher of “Oil Daily,” filed suit alleging numerous instances of copyright infringement and violations of the Digital Millennium Copyright Act (DMCA) against KA, a boutique investment firm. KA purchased an annual “Oil Daily” subscription for a partner, but the partner routinely shared access with fellow KA employees and other third parties in violation of his subscription agreements and copyright law.

The Fifth Circuit held that failure to mitigate is not a complete defense to copyright or DMCA claims for statutory damages; the district court properly denied KA’s referral motion; and the district court properly denied KA’s post-offer attorney’s fees under Rule 68. The court also held that remand was necessary to determine copyright damages because the court could not determine whether the jury intended to award EIG $15,000 per infringed work. Therefore, the court affirmed the district court’s denial of KA’s 17 U.S.C. 411(b) referral motion; vacated the judgment in full and instated an award of $1,062,500 for EIG’s DMCA claims. The court remanded as to copyright damages, attorney’s fees, and costs, with the clarification that non-prevailing copyright and DMCA defendants may not recover post-offer attorney’s fees under Rule 68. View “Energy Intelligence Group, Inc. v. Kayne Anderson Capital Advisors, LP” on Justia Law