Judge Asks Author to Consider a Massively Reduced Claim after Suing eBook.bike for Infringement

The copyright infringement lawsuit filed by author John van Stry against
former Pirate Party leader Travis McCrea may be edging closer to financial discomfort. A motion for summary judgment filed by the plaintiff demanded $15,000 in damages for each title infringed, to a total of $180,000 plus costs. The presiding judge has now asked Van Stry to consider accepting just $750 per work to keep things simple.

Just over a year ago, author John Van Stry filed a copyright infringement
lawsuit in a Texas court against former Pirate Party Canada leader Travis McCrea, the operator of eBook download platform eBook.bike.

The complaint alleged that McCrea infringed the copyrights of Van Stry by making at least a dozen of his books available for download without a license, along with other titles by prominent authors including Stephen King and J.K. Rowling.

Following the case has been testing, to say the least. The discovery process was labored, disorganized, and at times not much short of chaotic. The parties, when they communicated at all, were beset by problems that were agonizingly detailed in pages of court filings. McCrea cited various defenses, including under the DMCA and on religious grounds, and was flat-out accused of frustrating the entire process by Van Stry’s legal team.

Behind that briefest summary of events, the case has been rumbling in the background, consuming large sums of time and money as it has done so. Given McCrea’s earlier claim that he would never be able to pay should he lose the case and Van Stry’s obvious financial investment in the matter, it was always going to be hard to pick a ‘winner’.

That being said, Van Stry seems determined to make a point about piracy, not only for him but for all authors. It might prove difficult to put a price tag on that but it is the court’s job to try. That leads us to a proposed motion for final summary judgment filed by Van Stry’s legal team that has just been dealt with by the judge.

The proposed summary judgment asks the court to find that McCrea “knowingly and intentionally” committed direct infringement in respect of 12 of Van Stry’s books and is “contributorily and vicariously responsible” for copyright infringements carried by Ebook.bike’s users in respect of the same works.

Demanding a broad injunction to prevent McCrea and his “agents, servants, employees, attorneys, and all persons in active concert and participation with him” from infringing, causing, enabling, facilitating, encouraging, contributing to, or participation in infringement of the works in future, it further proposes significant damages.

“Pursuant to 17 U.S.C. §504(c)(1), the Court awards Mr. Van Stry $15,000 per each of the twelve works-at-issue, consisting of $3,800 in compensatory damages and, due to Mr. McCrea’s willful infringement, $11,200 in punitive damages, for a total of $180,000,” the proposal reads.

On top, of course, Van Stry is demanding full costs, including attorneys’ fees, to ensure he isn’t left out of pocket.

In a memorandum and opinion issued this week, District Court Judge William Bryson notes that under the Copyright Act, Van Stry could’ve demanded a whole lot more in statutory damages – $150,000 per work, to be precise. The Judge then goes on to address several documents filed by McCrea in which he denied any wrongdoing because there was no evidence “that there had been any downloads of the copyrighted material.”

“At the same time, Mr. McCrea said that he was ‘practising [his] religion by helping authors connect with their readers,” the Judge writes. “McCrea also claimed that his actions were protected by the safe harbor provision of the Digital Millennium Copyright Act. And, in the event of liability, Mr. McCrea disputed Mr. Van Stry’s contention as to the appropriate amount to be awarded in damages.”

On the DMCA issue, the Judge goes into some detail but ultimately notes that McCrea is not entitled to claim safe harbor due to his failure to register an agent at the Copyright Office.

In respect of some kind of defense under the Religious Freedom Restoration Act 1993 (RFRA), the Judge states that the RFRA doesn’t apply because the case is a dispute between private parties.

“Even assuming the sincerity of Mr. McCrea’s beliefs and even if RFRA were applicable to this case, Mr. McCrea’s affirmative defense would still fail because he has provided no evidence that the government, or any entity, has substantially burdened his practicing of his religion,” the Judge notes.

“The only religious practices Mr. McCrea identifies is ‘helping authors connect with their readers’ and copying and sharing information. I fail to see the suggested conflict between those practices and abiding by the Copyright Act. Mr. McCrea certainly could have approached Mr. Van Stry to obtain a license to copy, make available, and distribute Mr. Van Stry’s copyrighted works, if that was how Mr. McCrea chose to help connect Mr. Van Stry with his readers.”

At this stage, the motion appears to be going nowhere good for McCrea but the Judge then reveals he won’t be rubber-stamping Van Stry’s request for damages as outlined in his proposed motion. The Supreme Court provides a right to a trial and the scale of statutory damages is a question for the jury unless both sides agree to a decision being made by the court.

Given submissions from the parties, Judge Bryson says he believes Van Stry and McCrea want him to decide the appropriate amount of statutory damages. However, what Van Stry is demanding ($15,000 per work) conflicts with the statutory minimum suggested by McCrea ($750 per work).

As a result, the Judge wants both sides to write to the court to confirm that they want him to decide the amount, rather than a jury. This, however, raises other issues.

“[I] note that the right to a jury trial on the issue of statutory damages does not apply when the plaintiff seeks an award limited to the statutorily guaranteed minimum amount,” the Judge notes.

“In light of Mr. Van Stry’s acknowledgment that damages, in this case, are likely to be illusory, he may wish to limit his request for statutory damages to the statutory minimum award of $750 per work —an amount that Mr. McCrea has already agreed would be appropriate. In that event, a jury trial on damages would not be necessary.

“Mr. Van Stry may, if he chooses, make the request to limit the award of statutory damages in the alternative. The request, that is, would only control in the event that Mr. McCrea does not waive his right to a jury trial,” Judge Bryson adds.

The parties have been given seven days to advise the Court whether they wish to have the Court “resolve all issues pertinent to an award of statutory damages” in excess of the statutory limit of $750 per work. We know that $750 is acceptable to McCrea but seems unlikely to be acceptable to Van Stry – 12 x $750 sounds like $9,000, a lot less than the $180,000 previously mentioned.

Should the author win the case he will, however, be entitled to recover his costs. Earlier this year, Van Stry indicated he was already in the hole for $60,000 in legal fees, only half of which was covered by donations from fellow authors and other well-wishers.

But even that figure must’ve been surpassed by now, especially if the associated GoFundMe campaign’s target of $90,000 is anything to go by. That still leaves the question of whether he can recover anything at all – damages or costs – from McCrea, who doesn’t even live in the United States.

Either way, eBook.bike shut down many months ago.

The motion for summary judgment and memorandum opinion and order can be found here and here

Originally published as “Judge in eBook.bike Piracy Case Asks Author to Consider a Massively Reduced Damages Claim” with the Attribution-NonCommercial 3.0 Unported (CC BY-NC 3.0) license