Reply at 7, the plaintiffs reason that Garcia may not raise the innocent infringer defense.
We are uneasy with this interpretation and application of § 401(d). The copyright notices at issue here appeared on the seized videotapes -- the fakes -- and § 401(d) applies only where the notice appeared "on the published copy or copies to which a defendant . . . had access." See also S. REP. No. 100-352, at 78 (1988), reprinted in 1988 U.S.C.C.A.N. 3706. The unauthorized duplicate videotapes obviously are not "the published copy," and we doubt that they are "copies to which a defendant . . . had access," for if they are, then every defendant who infringes a copyright by distributing unauthorized duplicates has "access" to the unauthorized duplicates that he's distributing.
See Zakarian, 1991 WL 93889, at *3 (describing, by contrast, a defendant's "access" . . . [to] numerous sources from which she can purchase new or used videocassettes"); Columbia Pictures Indus., Inc. v. Zuniga, 1995 U.S. Dist. LEXIS 15824, No. 95 C 2474, 1995 WL 632249, at *4 (N.D. Ill. Oct. 25, 1995) (same). And if every distributor has "access," unlawful distribution can be innocent only when the unauthorized copies do not bear the copyright mark. Under this reasoning, if one unauthorized duplicate videotape was labeled with a believable reproduction of the original label (and thus bore a copyright mark) while another had a handwritten label (without a copyright mark), the distributor of the first videotape could not claim innocent infringement but the second could, despite the fact that it is the second distributor who has no credible claim of innocence. It seems unlikely that Congress intended such a perverse outcome.
Our hesitation on this point will be of cold comfort to Garcia, however, since § 504(c)(2) makes the reduction of the statutory damages entirely discretionary, and even if Garcia could "sustain the burden of proving" that his infringement was innocent, we would decline to reduce the damages. Garcia possessed a large number of unauthorized copies (133) of a large number of movies (102), a fact which we believe belies his innocent infringer claim. In addition, the plaintiffs have presented substantial evidence that unauthorized videotapes are easily distinguishable from authorized videotapes, and as the proprietor of a video rental business, Garcia should have recognized (if he did not actually know) that his tapes were fakes. In short, Garcia cannot persuade us to reduce his damages. See Tucker, 1997 WL 779093, at 11. He infringed the copyrights of 102 movies, and we grant the plaintiffs their requested damages: $ 500 per infringement, for a total of $ 51,000.
The plaintiffs have also asked for an injunction barring Garcia from further violations of their copyrights and trademarks. See 17 U.S.C. § 502; 15 U.S.C. § 1125. Garcia's did not respond to this request at all, and in light of the fact that Garcia's violation was large and that Garcia, as the owner of Master Video II, poses a threat of future infringements, we see no reason not to grant the injunction. See Tucker, 1997 WL 779093, at *13; Columbia Pictures Indus., Inc. v. Babella, 1996 U.S. Dist. LEXIS 7990, No 95 C 1610, 1996 WL 328015, at *4 (N.D. Ill. June 11, 1996); Richardson, 1996 WL 928200, at *4; Zuniga, 1995 WL 632249, at *5-6; Zakarian, 1991 WL 93889, at *6.
For the foregoing reasons, we grant the plaintiffs' motion for summary judgment and award damages and an injunction. It is so ordered.
MARVIN E. ASPEN
United States District Judge
JUDGMENT IN A CIVIL CASE
That the defendant infringed the copyright of 102 movies, and we grant the plaintiffs their requested damages; $ 500 per infringement, for a total of $ 51,000. In light of the fact that Garcia's violation was large and that Garcia, as the owner of Master Video II, poses a threat of future infringemens, we see no reason not to grant the injunction. We grant the plaintiffs' motion for summary judgment and award damages and an injunction.