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How Defendant's Prior Conduct Can Impact Copyright Cases

By Nicholas J. Boyle and Richard A. Olderman

In the context of a copyright case, a defendant's prior bad acts and prior conduct are more useful to a plaintiff than is typical in civil litigation. In many instances, copyright infringement lawsuits are brought against defendants who have been sued before for infringement, or related misconduct, or who have been the subject of allegations or informal complaints, or who simply have experience in copyright matters.

Under Federal Rule of Evidence §404(b), the use to which prior bad acts and conduct may be put by a plaintiff in a regular civil case is limited, and Federal Rule of Evidence §403 balances the probative value of the evidence against prejudice. In copyright cases, however, as a practical matter the plaintiff has somewhat more latitude and such evidence may serve several distinct objectives. A defendant's history, whether related to the misconduct at issue or not, may be used by a savvy plaintiff in three ways: 1) to establish willfulness, and thus both enhance the statutory damages award and obtain attorney fees under the Copyright Act; 2) to establish knowledge and thereby make a case (where appropriate) for contributory infringement; and 3) as a basis for injunctive relief.

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