In a February 6, 2017 ruling, Judge Richard J. Sullivan rejected the defendant's claim that the plaintiffs waived their right to actual copyright infringement damages by failing to request them in their initial disclosures. The Court wrote:Although Plaintiffs “corrected” this disclosure a mere five days later . . . , Defendant argues that this purported correction was “void because Plaintiffs cannot reverse their prior election for statutory damages.” . . . None of the authority cited by Defendant supports a rule so strict that it would bar a plaintiff from recovering actual damages due to an election made in initial disclosures and corrected days later, particularly where Defendant has not articulated any prejudice. Rather, the closest examples cited by Defendant involve elections made much later in litigation. See Marano v. Aaboe, No. 05-cv-9375 (BSJ) (RLE), 2010 WL 6350785, at *4 (S.D.N.Y. Oct. 20, 2010) (plaintiff “elected to seek statutory damages instead of actual damages in his initial brief” in connection with an inquest on damages, which “came more than one year after a default judgment had been entered and more than six weeks after the conclusion of fact discovery on the issue of damages”), adopted by 2011 WL 1157553 (S.D.N.Y. Mar. 28, 2011); Homkow v. Musika Records, Inc., No. 04-cv-3587 (KMW), 2008 WL 508597, at *4 (S.D.N.Y. Feb. 26, 2008) (plaintiff “clearly elected to pursue statutory damages” by requesting such damages in his amended complaint and repeating that request in a submission made in connection with an inquest on damages after entry of default judgment). The Court sees no legal or logical basis for applying the “gotcha” rule envisioned by Defendant, and thus declines to find that Plaintiffs have “irreversibly” elected statutory damages by referencing such damages in their initial disclosures and quickly correcting that reference.Judge Sullivan nevertheless ruled that "Plaintiffs’ failure to introduce any evidence of actual damages is a de facto election of statutory damages," and limited the Plaintiffs to recovering statutory damages only if Plaintiffs are able to prove infringement.
