Encyclopaedia Britannica v. Crooks
58 F. Supp. 1247
Encyclopaedia Britannica Educational Corporation, Learning Corporation
of America, and Time-Life Films, Inc., Plaintiffs, v. C. N.
Crooks, Joseph S. Plesur, William Moorman, George Mueller, Richard
E. Forrestel, Richard M. Pfeiffer, Frederick Sievenpiper, John
Stovall, Theodore H. Ertel, Alvin J. Kraebel, snd Board of Cooperative
Educational Services, First Supervisory District, Erie County,
Defendants
United States District Court for the Western District
of New York
March 10, 1983
COUNSEL:
Raichle, Banning, Weiss & Halpern, (R. William Stephens, Esq.,
of Counsel), Buffalo, New York, and Sargoy, Stein & Hanft (Burton
H. Hanft, Esq., and Jeffrey A. Rosen, Esq, of Counsel), New
York, New York, for Plaintiffs.
Ellis, Kustell & Mullenhoff, (Carl B. Kustell, Esq., of Counsel),
Buffalo, New York, for Defendants. Opinion
By: Curtin, District Judge
On June 21, 1982, this court determined that defendants' highly
organized and systematic practice of making off-the-air videotapes
and derivative copies of plaintiffs' televised copyrighted works
did not constitute fair use under the copyright laws. Encyclopaedia
Britannica Educational Corp. v. Crooks, 542 F. Supp. 1156 (W.D.N.Y.
1982). The remaining issues to be determined in this case concern
defendants' motion to allow temporary videotape copying and
use of plaintiffs' works, plaintiffs' motion to reconsider their
request for an award of costs and attorneys' fees, and various
issues involving damages and the number and types of infringements
committed by BOCES. Temporary Use
In the court's order of June 21, 1982, plaintiffs' request for
a permanent injunction prohibiting defendants from copying any
future copyrighted works of plaintiffs was granted. Encyclopaedia
Britannica Educational Corp. v. Crooks, supra at 1188. At that
time, the court noted that some limited or temporary use of
plaintiffs' televised works might be considered fair use under
the Copyrights Act of 1976 [the New Act], 17 U.S.C. @ 107, and
defendants now seek an order amending the injunction to allow
for such temporary use.
The House Report on the 1976 Copyrights Act stated that off-the-air
videotaping for classroom use was a difficult issue to resolve
and that the Judiciary Committee believed
that the fair use doctrine has some limited application in this
area, but it appears that the development of detailed guidelines
will require a more thorough exploration than has so far been
possible of the needs and problems of a number of different
interests affected, and of the various legal problems presented.
Nothing in section 107 or elsewhere in the bill is intended
to change or prejudice the law on the point. H.R. Rep. No. 94-1476,
94th Cong., 2nd Sess. 71-72 (Sept. 3, 1976), reprinted in [1976]
U.S. Code Cong. & Admin. News 5659, 5685. Subsequently, the
House Subcommittee on Courts, Civil Liberties and the Administration
of Justice, issued guidelines concerning off-the-air videotaping
for educational use, which suggest that off-the-air videotaping
be permitted for a limited period of time. Under these guidelines,
videotape copies may be kept for 45 calendar days, after which
time the tapes are to be erased. Off-the-air videotapes may
only be made at the request of a teacher and can only be used
for "relevant teaching activities" during the first 10 school
days of this time period. After this time, the tapes may only
be used for evaluation purposes. Additionally, a videotape copy
may be used once in the classroom by individual teachers "and
repeated only once when instructional reinforcement is necessary."
Guidelines for Off-the-Air Recording of Broadcast Programming
for Educational Purposes, Cong. Rec. @ E4751, October 14, 1981.
BOCES maintains that a temporary use time period encompassing
one school year would be more appropriate but also suggests
that the 45-day period under the Subcommittee guidelines or
a one-month temporary-use period would be acceptable alternatives.
Plaintiffs object to any modification of the injunction. In
this respect, plaintiff Time-Life never permitted temporary
off-the-air videotape use of their works, and plaintiff Learning
Corporation of America no longer permits such use. Plaintiff
Encyclopaedia Britannica also states that it will no longer
permit BOCES to videotape its works off-the-air for temporary
use.
When a claim of fair use is asserted, the court weighs and considers
the merits of the claim by applying the suggested criteria found
in section 107 of the New Copyrights Act. MCA, Inc. v. Wilson,
677 F.2d 180, 182 (2d Cir. 1981). These factors are set forth
in the statute as follows:
1) The purpose and character of the use, including whether such
use is of a commercial nature or is for non-profit educational
purposes;
2) The nature of the copyrighted work;
3) The amount and substantiality of the portion used in relation
to the copyrighted work as a whole; and
4) The effect of the use upon the potential market for or value
of the copyrighted work.
In examining defendants' claims, it is helpful to begin by examining
the last factor, "the effect of the temporary use upon the potential
market for or value of the copyrighted work," or, more succinctly,
"harm." It is significant that all of the plaintiffs' works
are available for rental or lease for short or long-term periods
in both film and videotape form. In fact, these works may be
rented for as short a time as one to three days. See Encyclopaedia
Britannica Educational Corp. v. Crooks, supra at 1171. Additionally,
the court notes that there are many types of licensing agreements
permitting educational institutions to duplicate plaintiffs'
works, and these licensing agreements have previously been described
in detail, Encyclopaedia Britannica Educational Corp. v. Crooks,
supra at 1164-1166. For these reasons, any temporary use by
BOCES of plaintiffs' copyrighted works would interfere with
the marketability of these works, and the cumulative effect
of this temporary videotaping would tend to diminish or prejudice
the potential short-term lease or rental market for these works.
See Encyclopaedia Britannica Educational Corp. v. Crooks, supra
at 1171.
Similarly, in looking to the nature of the copyrighted work,
the availability of plaintiffs' work in film or videotape form
for short periods of time is an important consideration. This
factor generally refers to the type of material used and whether
distribution would serve the public interest. As explained in
the court's decision of June 21, 1982, distribution may be in
the public interest when the information is difficult to obtain.
If a work is unavailable through "normal channels," there may
be "'more justification for its reproduction than in the ordinary
case' . . . ." S.Rep. No. 94-473, 94th Cong., 1st Sess., 64
(Nov. 20, 1975), supra at 1177. In this case, it is evident
that copies of plaintiffs' works may be obtained for short periods
through normal channels, and this factor does not shift any
weight towards defendants' fair use contentions.
Concerning the "substantiality" factor, defendants are only
interested in obtaining a complete copy of plaintiffs' works,
which again could be supplied by the plaintiffs. In examining
the last factor, the "purpose and character of the use," BOCES'
general purpose for using plaintiffs' works is to achieve laudable
educational objectives. Yet, defendants' specific purpose in
seeking temporary use of plaintiffs' works is to engage in "time
shifting" -- the ability of teachers and students to view television
programs irrespective of when the program was broadcast by a
television station. While time shifting may be more convenient
for defendants, fair use is a concept based upon reasonableness.
Meeropol v. Nizer, 560 F.2d 1061, 1070 (2d Cir. 1977), cert.
denied, 434 U.S. 1013, 54 L. Ed. 2d 756, 98 S. Ct. 727 (1978).
Reasonableness in this context does not inherently include convenience,
and the Senate Report on the 1976 Copyrights Act stated: "The
Committee does not intend to suggest, however, that off-the-air
recording for convenience would under any circumstances be considered
'fair use.'" S.Rep. No. 94-473, 94th Cong., 1st Sess., 66 (Nov.
20, 1975).
Under these circumstances, it is not reasonable to permit defendants
to engage in copying and using plaintiffs' works for a limited
period of time when these same copyrighted works are readily
available from the plaintiffs for a limited period of time.
It should be stressed that this determination affects only the
defendants' practice of copying plaintiffs' copyrighted and
televised works. Although the court finds that limited temporary
use does not apply to plaintiffs' televised works in this instance,
the court is aware that there are many different off-the-air
rerecord rights attached to the many different kinds of programs
broadcast by television stations. The court's finding that defendants'
request for temporary use is not fair use of plaintiffs' works
is intended only to affect the parties in this case and is based
solely on the law and the facts as presented in the instant
action. Costs and Attorneys Fees
In the order of June 21, 1982, the court requested further briefs
from the parties concerning the plaintiffs' request for costs,
and plaintiffs have also moved the court to reconsider the court's
refusal to award them attorneys' fees in this case. Under the
New Copyrights Act, the award of costs is discretionary, 17
U.S.C. @ 505; however, this action is brought under the Copyrights
Act of 1909 [the Old Act]. Under section 116 of the Old Act,
the award of costs to the prevailing party is mandatory. Marks
v. Leo Feist, Inc., 8 F.2d 460, 461 (2d Cir. 1925); H.M. Kolbe
Co. v. Armgus Textile Co., 315 F.2d 70 (2d Cir. 1963). The fact
that this action was initiated under the Old Copyrights Act
and the case decided after the New Copyrights Act came into
effect on January 1, 1978, does not provide the court with any
discretion in this matter. See, e.g., Boz Scaggs Music v. KND
Corp., 491 F. Supp. 908, 912 n.4 (D. Conn. 1980). Accordingly,
plaintiffs are entitled to costs in this action pursuant to
17 U.S.C. @ 116.
Plaintiffs' motion for reconsideration of their request for
attorneys' fees is primarily based upon the belief that defendants
never made a good faith effort to comply with the copyright
law and that although plaintiffs' copyrights were prominently
displayed, Encyclopaedia Britannica Educational Corp. v. Crooks,
supra at 1184 and 1184 n.22, BOCES never even inquired about
what copying practices were acceptable under the law. Plaintiffs
further contend that defendants engaged in blatant copyright
infringement and that only the reproduction methods used by
BOCES can be characterized as novel.
The order of June 21, 1982, explained that this case presented
novel issues based on recent technological advancements as well
as unsettled issues of law and fact. Id. at 1186-87. In considering
plaintiffs' claims of bad faith, a determination of bad faith
depends not only on whether a defendant deliberately used copyrighted
material which it had been denied permission to use, but also
on whether the defendant genuinely believed that, nevertheless,
it had the legal right to make such use. Put another way, the
issue of good faith or bad faith in this context depends in
large part on the substantiality of the defense offered as justification
for the offending acts.
Roy Export Co. v. Columbia Broadcasting System, 503 F. Supp.
1137, 1155 (S.D.N.Y. 1980). Although defendants' constitutional
contentions and theories of fair use and estoppel were ultimately
found to be without merit, the defense presented was not insubstantial.
The issue of copyright and off-the-air videotaping of television
programs has certainly been an unsettled area of law since the
commencement of the instant litigation. See, e.g., Universal
City Studios, Inc. v. Sony Corporation of America, 480 F. Supp.
429 (C.D. Cal. 1979); and Universal City Studios, Inc. v. Sony
Corporation of America, 659 F.2d 963 (9th Cir. 1982), cert.
granted, 457 U.S. 1116, 102 S. Ct. 2926, 73 L. Ed. 2d 1328 (1982).
Further, attorneys' fees in copyright cases have been sparingly
used, MCA, Inc. v. Wilson, supra at 187; Orgel v. Clark Boardman
Co., 301 F.2d 119, 122 (2d Cir. 1962), and have previously been
awarded only where it appears that the defendant has resisted
a valid claim with a defense that is so lacking in merit as
to present no arguable question of law or fact, or where it
appears that the defense was designed to annoy or harass the
plaintiff.
Morser v. Bengor Products Co., 283 F. Supp. 926, 929 (S.D.N.Y.
1968). Under these circumstances, the substantiality of the
defense presented by BOCES mitigates against an award of attorneys'
fees to the plaintiffs in this case. Damages
Plaintiffs seek minimum statutory damages of $250.00 for each
copying, vending, and performance infringement committed by
BOCES under the Old Copyrights Act, 17 U.S.C. @ 101(b). Defendants
contend that the court should award damages based upon their
perception of actual damages, or "just" statutory damages. They
suggest an amount of $250.00 for each of the 19 works in suit.
Plaintiffs have argued that actual damages are incalculable,
and since plaintiffs have offered no proof of actual damages
and because the record does not reveal defendants' actual profits,
statutory damages must be awarded. Robert Stigwood Group Ltd.
v. O'Reilly, 530 F.2d 1096, 1101 n.11 (2d Cir. 1978). Further,
the court's discretion in awarding "just" statutory damages
is limited to adhering to the statutory minimum of $250.00 for
each infringement found. Id. at 1102. It also seems apparent
that plaintiffs' 19 works qualify as dramatic "motion picture
photoplays" under section 1(d) of the Old Copyrights Act. See
Universal Pictures Co. Inc. v. Harold Lloyd Corp., 162 F.2d
354 (9th Cir. 1947), and are therefore subject to the $250.00
to $5,000.00 statutory damage provisions of section 101 of the
Old Act. Types of Infringements
The court has already determined that defendants have engaged
in copying infringement, 17 U.S.C. @ 1(a), Encyclopaedia Britannica
Education Corp. v. Crooks, supra at 1185, and thus, the remaining
issues concern plaintiffs' claims of vending and performance
infringements and the number of infringements committed by BOCES.
Vending Infringement
The copyright holders' exclusive rights to "vend" copyrighted
works under the Old Copyrights Act, 17 U.S.C. @ 1(a) is not
defined by the statute, although courts have generally interpreted
this right to mean the right to sell, and it implies a prohibition
against unauthorized sales. Platt & Munk Co., Inc. v. Playmore,
Inc., 218 F. Supp. 267, 268 (S.D.N.Y. 1962), modified and aff'd,
315 F.2d 847 (2d Cir. 1963). Plaintiffs contend that BOCES'
agreement with the schools to supply and make videotape copies
constitutes a buyer-seller contract between BOCES and the school
districts subscribing to the videotape service. Under plaintiffs'
theory, BOCES "sold" videotape copies to the schools each time
BOCES fulfilled a teacher request for a videotape copy or televised
one of plaintiffs' copyrighted works via BOCES' cable television
transmission system. Thus, every time one of these acts took
place, plaintiffs claim that a vending infringement occurred.
BOCES maintains that its videotape operations were part of a
program of shared education services and that these operations
are more properly characterized as a service agreement. As a
result, BOCES argues that plaintiffs have failed to demonstrate
that BOCES actually sold any of the 19 copyrighted works in
suit. Under defendants' theory, since BOCES never sold any of
plaintiffs' copyrighted works, BOCES never engaged in vending
and therefore has not committed any vending infringements.
In determining whether or not a contract is for the provision
of services or sales, the court must look to the essence of
the agreement to determine whether service predominates over
any sales aspect. North American Leisure Corp. v. A & B Duplicators
Ltd., 468 F.2d 695, 697 (2d Cir. 1972); Manes Organization,
Inc. v. Standard Dyeing and Finishing Co., 472 F. Supp. 687,
690 n.3 (S.D.N.Y. 1973), "where service predominates, and the
transfer of personal property is only incidental to the transaction,
it is a contract for work, labor and materials and not a sale."
William H. Wise & Co. v. Rand McNally & Co., 195 F. Supp. 621,
625 (S.D.N.Y. 1961).
BOCES' organizational structure as a non-profit educational
cooperative and its authority to conduct shared educational
services under New York Educatin Law @ 1950 has previously
been noted. Encyclopaedia Britannica Educational Corp. v. Crooks,
supra at 1159. Indeed, the scope and sophistication of BOCES'
television and videotaping activities attest to its economic
efficiency as a shared resource of the member school districts.
BOCES' primary purpose in its off-the-air videotaping and television
broadcasts, maintaining its library, and distributing its catalog
was to provide videotapes to school teachers. The costs of the
operation were primarily based on a per-pupil assessment for
each school district, and tapes used for producing the videotape
copies were supplied by the schools. As previously described,
there was no limitation on the number of tapes which could be
requested from BOCES, and no restrictions were placed on the
use of the copy tape; teachers could keep and use the copy indefinitely.
Additionally, none of the 19 works involved in the case was
copied for any institutions other than the schools participating
in BOCES' videotape program.
In a case involving the reproduction of audiotapes, North American
Leisure Corp. v. A & B Duplicators Ltd., supra, the court determined
that a service agreement existed when "NAL" employed "A & B"
to reproduce copies from a master tape supplied by NAL. This
is not strictly the situation here, as the schools did not provide
BOCES with a master tape but a blank tape for copying purposes.
Yet, the master tapes used by BOCES in this case were produced
for the participating schools, and the cost of off-the-air videotaping
was paid for by the participating schools. Taking all these
factors into account, BOCES' relationship to the schools is
more characteristic of an agreement to provide labor, work,
and material than a contract for the sale of videotapes to teachers.
Under these circumstances, plaintiffs have not demonstrated
that BOCES engaged in unauthorized sales of videotapes, and
for these reasons, plaintiffs are not entitled to vending infringement
damages in this case.
The court notes that under the New Copyrights Act, a copyright
holder now has the right to "distribute" pursuant to 17 U.S.C.
@ 106(3), which may provide a copyright proprietor with greater
rights than found in section 1(a) of the Old Act. Yet, this
court is bound to apply the Old Act in its analysis and must
"take the Copyright Act of 1909 as we find it." Fortnightly
Corp. v. United Artists Television, Inc., 392 U.S. 390, 401-02,
20 L. Ed. 2d 1176, 88 S. Ct. 2084 (1968). Performance
Infringements
Plaintiffs request the court find that each time one of their
19 copyrighted works was copied by BOCES, it was also shown
in a classroom and a public performance copyright infringement
occurred in violation of 17 U.S.C. @ 1(d). Plaintiffs also claim
that each cable television broadcast of plaintiffs' copyrighted
works by BOCES to school classrooms constitutes an additional
performance infringement.
Defendants contend that there must be substantial evidence to
support a claim of copyright infringement based on a public
performance, Baccaro v. Pisa, 252 F. Supp. 900, 906 (S.D.N.Y.
1966), and argue that plaintiffs have not demonstrated that
the works which were videotaped were actually shown in school
classrooms. Defendants further contend that if the videotape
copies were shown in classrooms, these activities constitute
private performances rather than public performances, as required
for a finding of liability under the statute. Third, BOCES argues
that its cable television transmissions of plaintiffs' works
are not performance infringements under the Old Act. Finally,
BOCES contends that because any performances of plaintiffs'
works occurred in school classrooms, defendants are only liable
for performance infringements if they are found to be contributory
or vicarious infringers.
Plaintiffs have demonstrated by a preponderance of the evidence
that each videotape copied by BOCES was shown in a school classroom
on at least one occasion and that each BOCES cable television
transmission was received in at least one classroom. At trial,
testimony of teachers revealed that a videotape copy produced
by BOCES was generally played four to seven times before a classroom
audience. It is also important to keep in mind that teachers
filled out request forms for videotape copies; BOCES then produced
and delivered these copies to the schools, and these copies
were used for classroom purposes. Encyclopaedia Britannica Educational
Corp. v. Crooks, supra at 1163. Additionally, there seems little
reason for BOCES to broadcast plaintiffs' works via cable television
if none of the classroom television sets was turned on to receive
BOCES' broadcasts. In short, plaintiffs have proven their contention
that each videotape copy was played at least once before a classroom
audience and that each BOCES' cable television broadcast was
viewed by a student audience in at least one of the subscribing
schools.
Defendants' second argument that the performances were not "public"
performances is without merit. Defendants contend that because
New York State statutes place restrictions on the types of persons
who can enter classrooms and attend classes, the classroom performances
of plaintiffs' works were therefore private performances. Under
the Old Act, unlimited public access was not required in order
for a copyrighted work to be publicly performed, and a performance
infringement could occur "where there is only a segment of the
public involved, such as those people considered together because
of common interest or purpose," Lerner v. Schectman, 228 F.
Supp. 354, 355 (D. Minn. 1964). Given the nature of the audiences
involved here -- public school students with a common purpose
and interest in education -- the court finds that these works
were all performed publicly within the meaning of the Old Act.
Concerning BOCES' cable television transmissions, defendants
argue that BOCES only received television signals broadcast
by WNED-TV and therefore cannot be considered to have "performed"
plaintiffs' works when BOCES subsequently transmitted these
programs to the schools. BOCES contends that following the trilogy
of Twentieth Century Music Corp. v. Aiken, 422 U.S. 151, 45
L. Ed. 2d 84, 95 S. Ct. 2040 (1975); Teleprompter Corp. v. Columbia
Broadcasting System, Inc., 415 U.S. 394, 39 L. Ed. 2d 415, 94
S. Ct. 1129 (1974); and Fortnightly Corp. v. United Artists
Television, Inc., supra, it is not a "performer" as a matter
of law.
First, it should be noted that the United States Supreme Court's
decision in Twentieth Century Music Corp. v. Aiken, supra, is
factually distinguishable from the instant case. That case concerned
a small fast-food shop in which radio programs were played by
means of a radio receiver connected by four speakers in the
shop's ceiling. Based upon these facts, the court found the
shop to be exempt from the 1909 copyright laws.
In Fortnightly, the Supreme Court determined that a broadcaster
"performs" within the meaning of the Act because a broadcaster
has the ability to select, procure, and propagate programs to
the public by broadcast or rebroadcast. Fortnightly Corp. v.
United Artists Television, Inc., supra 392 U.S. at 400. This
decision was reaffirmed in Teleprompter Corp. v. Columbia Broadcasting
System, Inc., supra 415 U.S. at 409-10. BOCES' Videotape Service
conducted these very activities -- selecting, procuring, and
propagating plaintiffs' works by cable television rebroadcast
to the schools. For these reasons, BOCES' cable television broadcasts
of plaintiffs' works must be considered "public performances"
under the Old Act. Number of Infringements
There are two tests which, under appropriate circumstances,
may be applied to limit the number of infringements committed
by a copyright infringer. The "time test" refers to the proximity
in time of repeated infringements in deciding whether to treat
them as multiple infringements or one continuous infringement.
The "heterogenity test" looks to whether the successive infringements
are so similar in nature that they should be treated as one
infringement. Iowa State University Research Foundation, Inc.
v. American Broadcasting Companies, Inc., 475 F. Supp. 78, 82
(S.D.N.Y.), aff'd, 621 F.2d 57 (2d Cir. 1980).
Plaintiffs contend that none of the copying infringements occurred
so close in time as to constitute a single infringement. Concerning
performance infringements, plaintiffs argue that each videotape
copy produced by BOCES was sent to a different school at a different
time and performed for a different group of students in a different
classroom. Defendants have made no effort to prove that subsequent
infringements were continuous or repetitious of the first under
these tests. Baccaro v. Pisa, supra at 905. Accordingly, the
court finds that separate copying infringements occurred when
BOCES made five original master tapes of plaintiffs' works and
created videotape copies of plaintiffs' works derived from all
of the 19 master tapes within three years of the filing of the
complaint, in violation of 17 U.S.C. @ 1(a). The court further
finds that one separate performance infringement occurred when
each videotape copy was delivered to schools and shown in a
classroom, and each time BOCES broadcast one of plaintiffs'
copyrighted works via its closed circuit television system to
a school classroom, in violation of 17 U.S.C. @ 1(d).
Liability of Defendants
BOCES contends that the individual defendants cannot be directly
or contributorily liable for any copyright infringements because
they had no knowledge that their activities were in violation
of the copyright laws. Additionally, because the defendants
had no direct financial interests in the infringing activities,
defendants claim they cannot be held vicariously liable for
these activities. Gershwin Publishing Corp. v. Columbia Artists
Management, Inc., 443 F.2d 1159, 1162 (2d Cir. 1921).
A contributory infringer is one who, with knowledge of the infringing
activity, induces, causes or materially contributes to the infringing
conduct of another. Id. at 1162. In this respect, a defendant's
mistake as to the legal consequences of his actions does not
constitute an excuse for an infringement. It is only necessary
that a copyright defendant have knowledge of the infringing
activity. Universal City Studios v. Sony Corporation of America,
659 F.2d at 975.
BOCES has engaged in direct infringement of plaintiffs' copyright
in producing videotape copies of plaintiffs' works and by broadcasting
these works to the schools via cable television. By supplying
videotape copies to the schools, BOCES caused and materially
contributed to the public performance of plaintiffs' copyrighted
works in the school classrooms. The individual defendants in
this action, the BOCES Videotape Service employees and the members
of the Board of Cooperative Educational Services who were ultimately
responsible for BOCES' videotape activities, either caused or
materially contributed to these copyright infringements. "As
all united in infringing, all are responsible for the damages
resulting from the infringement." Gross v. Van Dyk Gravure Co.,
230 F. 412 (2d Cir. 1916), quoted in Gershwin Publishing Corp.
v. Columbia Artists Management Co., supra at 1162, n.7. As a
result all defendants are jointly and severally liable for costs
and damages in this action, M.C.A., Inc. v. Wilson, supra at
186. Summary
For the foregoing reasons, the court finds that (1) Defendants
are not entitled to any future temporary off-the-air videotape
use of plaintiffs' copyrighted works, and defendants' motion
to modify the injunction entered June 21, 1982, is denied; (2)
Plaintiffs' motion to reconsider their motion for attorneys'
fee is denied; (3) Plaintiffs' motion for costs pursuant to
17 U.S.C. @ 116 is granted; (4) Plaintiffs are entitled to statutory
damages of $250.00 for each copying and performance infringement
committed by BOCES, as described herein pursuant to 17 U.S.C.
@@ 1(a) and 1(d).
Plaintiffs are directed to submit a proposed judgment and an
affidavit of costs and the total number of copying and performance
infringements committed by BOCES, applying the minimum statutory
damage amount to this number. This affidavit shall be submitted
to the court by March 21, 1983.
So ordered.
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