Stry v. McCrea — Entry #62: MEMORANDUM OPINION AND ORDER

IN THE UNITED STATES DISTRICT COURT
                         FOR THE EASTERN DISTRICT OF TEXAS
                                 MARSHALL DIVISION


JOHN VAN STRY,                                  §
                                                §
        Plaintiff,                              §
                                                §
        v.                                      §         Case No. 2:19-CV-00104-WCB
                                                §
TRAVIS ROBERT McCREA,                           §
                                                §
        Defendant.                              §


                          MEMORANDUM OPINION AND ORDER

        Before the Court is plaintiff John Van Stry’s Corrected Motion for Final Summary

Judgment and Permanent Injunction, Dkt. No. 50, and his reply in support of that motion, Dkt. No.

59. Defendant Travis Robert McCrea filed an opposition on March 29, 2020, and a sur-reply on

April 6, 2020. Dkt. No. 54; Dkt. No. 61. Mr. McCrea also filed two other related documents on

March 29, 2020. One is entitled Defendant’s Reply to Plaintiff’s Motion to Compel Defendant to

Respond to Interrogatories and Requests for Production. Dkt. No. 56. The other is entitled

Defendant’s Reply to Plaintiff’s Motion for Sanctions Against Defendant for Failure to Obey the

Court’s Order to Produce Discovery by a Date Certain. Dkt. No. 55.

   I.        BACKGROUND

             A. Plaintiff’s Allegations

        Plaintiff Van Stry filed his complaint on March 27, 2019. In the complaint, Mr. Van Stry,

an author of numerous copyrighted books, alleged that Mr. McCrea operated a website that enabled

users to download copyrighted materials without the authors’ permission. See, e.g., Dkt. No. 1, at

19–44. Mr. Van Stry alleged that Mr. McCrea had willfully infringed Mr. Van Stry’s copyrights


through his creation, operation, and maintenance of that website. Id. at 44–50. Mr. Van Stry has

now moved for summary judgment on liability.

       Mr. Van Stry has also set forth the remedy he seeks. Under the Copyright Act, a copyright

owner may elect either actual damages or statutory damages as a remedy for copyright

infringement. Mr. Van Stry has elected to pursue statutory damages in the amount of $15,000 per

book. The maximum amount of statutory damages Mr. Van Stry could have sought for willful

infringement is $150,000 per book. Mr. Van Stry also seeks a permanent injunction to prevent

further infringement of his copyrighted books. And finally, Mr. Van Stry asks the Court to award

him “full costs,” including attorney’s fees.

           B. Procedural History

       Mr. Van Stry previously requested that I sanction Mr. McCrea for his failure to provide

any discovery in this litigation, even after I ordered Mr. McCrea to do so. Dkt. No. 44. In my

order addressing that motion, I summarized numerous indications that Mr. McCrea was not being

sufficiently attentive to his responsibilities in this litigation, despite my repeated warnings that his

continued lack of responsiveness could result in sanctions or even default. Dkt. No. 47, at 1–7.

As a result of Mr. McCrea’s repeated failings, including his failure to respond to any of the

plaintiff’s interrogatories or requests for production, I concluded that sanctions against Mr.

McCrea were appropriate and necessary. I held that “the prima facie elements of Mr. Van Stry’s

willful copyright infringement claim are established for purposes of this action, and Mr. Van Stry

will be given all reasonable adverse inferences against Mr. McCrea on the issue of damages.” Id.

at 13. I did not, however, strike Mr. McCrea’s affirmative defenses, as Mr. Van Stry requested.

Instead, I stated that Mr. Van Stry could file a motion for summary judgment addressing Mr.

McCrea’s affirmative defenses. Id. I also directed that if Mr. Van Stry chose to file a motion for


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summary judgment, he should address the proposed remedy he sought at that time because Mr.

McCrea had not been participating in this litigation. Id. Finally, I noted that while certain requests

for admission that had been served on Mr. McCrea were deemed admitted under Federal Rule of

Civil Procedure 36, Mr. McCrea would be permitted to move to withdraw his admissions if he so

chose.

         Mr. Van Stry filed a motion for summary judgment on March 6, 2020. Dkt. No. 50.

Several days later, Mr. McCrea filed a one-page response. Dkt. No. 52. Mr. McCrea’s response

did not address the merits of Mr. Van Stry’s motion. Instead, Mr. McCrea acknowledged that the

motion for summary judgment was a “reasonable request” because he had not responded to “valid

requests in a timely fashion.” Mr. McCrea nonetheless contended that he had “made good faith

efforts to stay on top of this trial,” so he should be given some unspecified measure of leniency.

         Due to the lack of clarity in Mr. McCrea’s response, I held a telephonic status conference

on March 19, 2020, to determine the exact nature Mr. McCrea’s assertions. At that conference,

Mr. McCrea stated that he had been receiving notices of electronic filings when Mr. Van Stry’s

counsel filed a document, and that he had received a notification when I ordered the

teleconference.1 But Mr. McCrea said he had not been receiving notices of electronic filings when

the Court entered various other orders in the case. The implication of Mr. McCrea’s assertion was

that his lack of diligence should be excused, at least in part, because of technical difficulties

resulting in his not receiving certain orders issued in the case.


         1
          When either the court or a party files a document on the docket, it triggers a notice of
electronic filing, an email that is sent to all the parties at the email address they have provided to
the clerk’s office. When a party receives a notice of electronic filing, the party can click on a link
in that email to download one free copy of the document that was filed.


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       I find it difficult to credit Mr. McCrea’s assertion for several reasons. First, it seems

implausible that the court’s system of notifying parties of filings in the case would work except

for some subset of the orders I have entered. Second, the clerk’s office in the Marshall Division

of the United States District Court for the Eastern District of Texas confirmed that notices of

electronic filing were being sent to the email address that Mr. McCrea had provided to the court.

Third, the motions filed by the plaintiff, which Mr. McCrea said he received, alluded to several of

my orders, yet Mr. McCrea made no attempt to gain access to those orders prior to Mr. Van Stry’s

motion for summary judgment.2

       Nonetheless, in order to ensure that Mr. McCrea had an opportunity to be heard with

respect to the orders that he claims not to have received, I gave him ten days to respond to any

order as to which he alleged that he had not been notified. I sent copies of each of those orders to

Mr. McCrea by email, and he confirmed that he received them. I also told Mr. McCrea that the

Court did not have the ability to give him access to the Public Access to Court Electronic Records

system (“PACER”), a system that he could use to download documents after he had used his first

free download, and that it was his responsibility to register through PACER if he so chose. I have

also directed opposing counsel to email Mr. McCrea copies of all documents subsequently filed in

the case.

       Mr. McCrea filed four documents on March 29, 2020. First, he filed a response to Mr. Van

Stry’s motion to compel discovery. In that response, Mr. McCrea stated that he “has now provided


       2
          Mr. McCrea asserted that he had unsuccessfully tried to reach my former law clerk by
email at some point in time after that clerk was no longer working for me. However, Mr. McCrea
also exchanged emails and had a telephone conversation with my current law clerk. He therefore
had both the email address and telephone number of my current law clerk, yet he admitted that he
did not attempt to reach my current law clerk or anyone else in chambers in an effort to obtain
copies of the orders that he claims not to have been able to access.


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the prosecution all documents related to TUEBL, EbookBike, and other requested material as per

their discovery.” Dkt. No. 56. He also said that while that production “was delayed and not with

good reason,” he had now produced the materials in order to have “an open, good faith”

proceeding. Id. Finally, he requested that I suspend the sanctions that I had previously entered.

He wrote:

               While I believe in precedent I am lacking, I would ask that the court hold
       off on any sanctions for the tardiness of this reply. Perhaps sanctions can, instead,
       be “suspended” and if the defence misses any future deadline or screws up in any
       way they can be instantly applied.

Id.

       Second, Mr. McCrea filed a response to Mr. Van Stry’s motion for sanctions for failure to

comply with this Court’s order to provide the discovery demanded by Mr. Van Stry. Dkt. No. 55.

In that response, Mr. McCrea said that he had not “chosen” to proceed pro se and that he could not

afford a lawyer. Id. at 1. Mr. McCrea also said that at times during the pendency of this case he

has been homeless and fighting depression, so it has been difficult representing himself, but that

“the [March 19] conference call . . . really snapped me back into shape and I am fully back in this

and ready to engage.” Id. at 3. He also apologized to the Court and opposing counsel because he

“has failed multiple times to adequately respond in this case . . . .” Id. at 1. Next, Mr. McCrea

said he has taken down the website, Ebook.Bike, that Mr. Van Stry alleges was used to facilitate

the downloading of Mr. Van Stry’s copyrighted materials without his permission. Id. at 3. Finally,

Mr. McCrea said that he has produced the requested discovery that was at issue in the motion for

sanctions. Id.

       Third, Mr. McCrea filed a second response to Mr. Van Stry’s motion for summary

judgment. Dkt. No. 54. In that response, Mr. McCrea denied any wrongdoing because there was

no evidence, according to Mr. McCrea, that there had been any downloads of copyrighted material.


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Id. at 3. At the same time, Mr. McCrea said that he was “practising [his] religion by helping

authors connect with their readers.” Id. at 2. Mr. 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. Id. at 1–2.

         The fourth filing Mr. McCrea made was a request for a continuance “of any further pre-

trial and trial matters until at least July 1, 2020 due to the 2019 novel coronavirus known as

COVID-19 . . . .” Dkt. No. 57. In that motion, Mr. McCrea stated that had “no intention to

reinstate” the website that is at issue in this case. I granted that motion in part, removing the

pretrial conference and trial from the schedule. Dkt. No. 58. I did not, however, stay the resolution

of the pending motions that had already been filed.

   II.      DISCUSSION

   Below, I address the pending matters before the Court. I will first address Mr. McCrea’s

responses to the discovery and sanctions motions, because their resolution implicates the

framework for assessing Mr. Van Stry’s motion for summary judgment. I will then address Mr.

Van Stry’s motion for summary judgment and his request for relief.

            A. Sanctions

         Mr. McCrea asks that I “suspend” the sanctions that I ordered unless and until “the defence

misses any future deadline or screws up in any way.” Dkt. No. 56. In his responses to Mr. Van

Stry’s motion to compel and motion for sanctions, however, Mr. McCrea has not provided a

justification that would warrant the suspension of the sanctions I previously ordered.

         To begin with, Mr. McCrea acknowledged during the March 19 teleconference and in his

most recent filings that he received the plaintiff’s discovery requests, and that he received both the


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plaintiff’s motion to compel compliance with those requests and the plaintiff’s motion for

sanctions for failing to make discovery.      Yet Mr. McCrea did not provide any discovery

whatsoever in response to the discovery requests, and he did not respond to either the motion to

compel or the motion for sanctions. As a result of his failure to take any steps whatever to meet

his discovery obligations, Mr. McCrea caused the plaintiff to have to move to compel discovery,

and ultimately to move for sanctions. As a result, the plaintiff incurred attorney fees that should

not have been unnecessary. That burden has not been erased by Mr. McCrea’s untimely insistence

that he is now prepared to comply with those obligations.

       To be sure, Mr. McCrea has claimed that he did not receive my order compelling discovery.

Even if true, however, that does not change the outcome. Mr. McCrea acknowledges that he

received Mr. Van Stry’s motion for sanctions. On the first page of that motion, Mr. Van Stry said

“Plaintiff moves for sanctions against Defendant for failure to provide any response to Plaintiff’s

interrogatories and requests for production by the December 30, 2019 deadline set by the Court’s

order compelling Defendant to respond to the same.” Dkt. No. 44, at 1 (emphasis added). Mr.

McCrea was thus on notice at that point, at the latest, that the Court had entered an order

compelling him to produce discovery by December 30, 2019, even if he had not seen the order

when it was issued. Nonetheless, Mr. McCrea did not respond to the motion for sanctions or make

any effort at that time to rectify the situation, nor did he attempt to obtain a copy of the Court’s

order referred to in Mr. Van Stry’s motion for sanctions. Under these circumstances, the

disposition of Mr. Van Stry’s motion for sanctions does not depend on Mr. McCrea’s claim that

he did not obtain access to some of the Court’s orders.

       I note that Mr. McCrea says in his response that he was “going homeless” and fighting

depression at some point during the pendency of this case. At the time of the motions, however,


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Mr. McCrea never requested a delay in responding to the plaintiff’s discovery requests or an

extension of any filing deadlines from the Court due to those alleged extenuating circumstances.

Nor does it appear that Mr. McCrea told Mr. Van Stry’s counsel about these issues. To the

contrary, Mr. McCrea told Mr. Van Stry’s counsel in a November 18, 2019, email that he was

“moving” at the end of the month and “unavailable [for a deposition] due to work.” Dkt. No. 39-

3, at 2–3. Even though Mr. McCrea’s responses to the discovery requests were substantially

overdue at that point, Mr. Van Stry’s counsel offered to give Mr. McCrea more time to respond.

It does not appear that Mr. McCrea engaged with Mr. Van Stry’s counsel any further after that

time. Under these circumstances, I find that Mr. McCrea has not offered a satisfactory explanation

for his failure to meet his discovery obligations, and I will therefore not alter or suspend the

imposition of sanctions for his discovery violations.

       Beyond the fact Mr. Van Stry’s prima facie case of willful copyright infringement is

established as a result of the Court’s sanctions order, Mr. McCrea’s challenge to liability on the

merits is not supported. He contends that summary judgment should not be granted because the

plaintiff “has no evidence that any of their work was actually available on the website” and no

evidence that the books were “downloaded from the site.” Dkt. No. 54, at 3. Mr. Van Stry replies

that Mr. McCrea admitted (by failing to respond to requests for admission) that all twelve

copyrighted books at issue in this litigation available for distribution on Mr. McCrea’s website and

that they were distributed into the United States. Dkt. No. 59, at 3. Mr. Van Stry’s counsel also

submitted an affidavit stating that as part of his pre-suit investigation, he downloaded all twelve

books from Mr. McCrea’s website. Id.

       In his sur-reply, Mr. McCrea questions whether Mr. Van Stry’s counsel’s affidavit is

truthful, but he does not deny that admitted (by failing to respond to requests for admission) that


                                               -8-


all twelve copyrighted books at issue in this litigation were available on his website and were

distributed into the United States. Dkt. No. 61, at 1–2. Nor does he affirmatively assert that Mr.

Van Stry’s books were not available for download on his website. Consequently, Mr. McCrea’s

“no evidence” challenge is not supported.

       Finally, as part of my order granting sanctions, I directed Mr. Van Stry’s counsel to submit

an affidavit detailing the reasonable expenses incurred as a result of Mr. McCrea’s failure to

comply with the Court’s order to provide discovery responses. Dkt. No. 47, at 14. Mr. Van Stry’s

counsel submitted an affidavit detailing the expenses incurred, and then requested a sanctions

award for half that amount, which totaled $3,605. Dkt. No. 48. Although Mr. McCrea has

requested the suspension of the sanctions, he has not objected to the reasonableness of the amount

of the requested expenses. I have reviewed the supporting materials Mr. Van Stry submitted, and

agree that the expenses are reasonable. Mr. McCrea is therefore ordered to pay Mr. Van Stry

$3,605 as a sanction for his failure to comply with his discovery obligations.

           B. Affirmative Defenses

       Although I held in my sanctions order that the prima facie elements of Mr. Van Stry’s

willful copyright infringement claim are established for purposes of this action, it is still necessary

to determine whether summary judgment should be granted with respect to Mr. McCrea’s

affirmative defenses. For the reasons discussed below, I will grant Mr. Van Stry’s motion for

summary judgment with respect to Mr. McCrea’s remaining affirmative defenses.

                     1. Digital Millennium Copyright Act’s Safe Harbor Provisions

       The Digital Millennium Copyright Act (“DMCA”) includes several safe harbor provisions

that shield service providers from liability from copyright infringement under certain

circumstances. See 17 U.S.C. § 512(a)–(d). The safe harbor that Mr. McCrea contends applies in


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this case is found in section 512(c). Dkt. No. 32 (Answer), at 1 (“Defendant . . . asserts their Safe

Harbour provided by the DMCA within 17 U.S. Code § 512 (c).”). Subsection 512(c) covers

infringement claims that arise “by reason of the storage at the direction of a user of material that

resides on a system or network controlled or operated by or for the service provider.” 17 U.S.C.

§ 512(c)(1); see also Viacom Int’l, Inc. v. YouTube, Inc., 676 F.3d 19, 27 (2d Cir. 2012).

       Mr. Van Stry contends that Mr. McCrea is not eligible for that safe harbor provision

because Mr. McCrea did not designate an agent to receive notifications of claimed infringement.

Dkt. No. 50, at 24–25. Mr. McCrea responds that he has a “reasonable claim to DMCA safe

harbour where I feel a jury should be able to decide how much notification should be required to

be given to a party when an improperly filed DMCA request is issued.” Dkt. No. 54, at 3. Mr.

McCrea also contends that he has “made every effort to follow the DMCA” and that Mr. Van Stry

has “never provided a valid DMCA request.” Id. The safe harbor, according to Mr. McCrea,

should only penalize individuals acting in bad faith. Dkt. No. 61, at 2–3. Finally, Mr. McCrea

contends that the “Registered Agent section” of the statute is irrelevant in this case because Mr.

Van Stry’s counsel was able to find a valid contact address. Id. at 4.

       The Court agrees with Mr. Van Stry that Mr. McCrea is not eligible for subsection 512(c)’s

safe harbor provision. Subsection 512(c) of the DMCA states that the “limitations on liability

established in this subsection apply to a service provider only if the service provider has designated

an agent to receive notifications of claimed infringement described in paragraph (3), by making

available through its service, including on its website in a location accessible to the public, and by

providing to the Copyright Office” certain contact information for that designated agent. 17 U.S.C.

§ 512(c)(2). Subsection 512(c) also requires the Register of Copyrights to maintain a directory of

designated agents that is available to the public for inspection. Id.


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       Mr. Van Stry has submitted evidence that there are no designated agents for Mr. McCrea

listed in the Copyright Office’s DMCA Designated Agent Directory. Dkt. No. 50, at 25. Mr.

McCrea does not dispute that he did not designate an agent with the Copyright Office. See

generally Dkt. No. 54. To the contrary, Mr. McCrea previously admitted that he had no designated

agent by failing to respond to a request for admission directed to that very issue. Dkt. No. 39-1,

at 26 (RFA 39).3

       Mr. McCrea’s contention that providing the contact information for a designated agent to

the Copyright Office is “irrelevant” is contrary to the plain language of the statute. As other courts

have recognized, the statute expressly requires that the designated agent must be listed in the

Copyright Office’s directory, even if that information is available elsewhere. BWP Media USA

Inc. v. Hollywood Fan Sites LLC, 115 F. Supp. 3d 397, 403 (S.D.N.Y. 2015) (“As stated above,

the statutory scheme expressly requires two publicly available, parallel sources of a service

provider's DMCA agent information (the service provider’s website and the USCO directory) in

order for that provider to be shielded by the § 512(c) safe harbor.”); Perfect 10, Inc. v. Yandex

N.V., No. C 12-01521 WHA, 2013 WL 1899851, at *8 (N.D. Cal. May 7, 2013) (“The statute

plainly specifies that a registered agent is a predicate, express condition—the safe harbor will apply

‘only if’ such agent has been designated and identified to the Copyright Office for inclusion in the

directory of agents.”).


       3
         I previously advised Mr. McCrea that the first set of requests for admission had been
deemed admitted because he did not respond to them. Dkt. No. 41, at 1–2. I gave him the option
to move to withdraw the admission, but he has not done so. Id.; see also Dkt. No. 47, at 13.


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       Because there is no dispute that Mr. McCrea failed to satisfy one of the conditions

necessary to invoke subsection 512(c)’s safe harbor, I will grant Mr. Van Stry’s motion for

summary judgment on Mr. McCrea’s safe harbor affirmative defense.4

                     2. Religious Exemption

       Mr. McCrea has also raised “religious exemption” as an affirmative defense. Mr. Van Stry

responds that there is no legal authority that “provides Mr. McCrea a ‘religious exemption’ from

liability for infringing Mr. Van Stry’s” copyrighted works. Dkt. No. 50, at 25. Mr. Van Stry

further contends that Mr. McCrea has not demonstrated that compliance with the copyright laws

has imposed any burden on or hindrance to Mr. McCrea’s ability to practice his religion. Id. at

26–28. Mr. McCrea replies that his “religion should be protected by the 1993 Protecting Religious

Freedom Act,” and that he is “practising my religion by helping authors connect with their

readers.” Dkt. No. 54, at 2–3. He also states that “[i]t is the position of the Kopimist Church that

copying is a holy act, to share files is a holy act, to share knowledge is a supremely holy act.” Dkt.

No. 61, at 3.

       There are several problems with Mr. McCrea’s “religious exemption” defense. Mr.

McCrea relies on the Religious Freedom Restoration Act of 1993 (“RFRA”), which prohibits the

“Government [from] substantially burden[ing] a person’s exercise of religion even if the burden

results from a rule of general applicability” unless the Government “demonstrates that application

of the burden to the person—(1) is in furtherance of a compelling governmental interest; and (2)

is the least restrictive means of furthering that compelling governmental interest.” 42 U.S.C.


       4
         In a footnote, Mr. Van Stry contends that there are several other reasons Mr. McCrea’s
safe harbor affirmative defense should be limited or rejected. Dkt. No. 50, at 25 n.8. Because I
am granting Mr. Van Stry’s motion for the reason given in this order, I do not reach those other
arguments.


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§§ 2000bb–1(a), (b); see also Burwell v. Hobby Lobby Stores, Inc., 573 U.S. 682, 690–91 (2014)

(noting that RFRA “prohibits the Federal Government from taking any action that substantially

burdens the exercise of religion unless that action constitutes the least restrictive means of serving

a compelling government interest.”). As Mr. Van Stry notes, however, RFRA does not apply when

the “government,” as defined by RFRA, is not a party to the action. Listecki v. Official Comm. of

Unsecured Creditors, 780 F.3d 731, 737 (7th Cir. 2015); Sutton v. Providence St. Joseph Med.

Ctr., 192 F.3d 826, 834, 837–43 (9th Cir. 1999); Gen. Conference Corp. of Seventh-Day Adventists

v. McGill, 617 F.3d 402, 410 (6th Cir. 2010). Because this case is a dispute between private parties,

RFRA is inapplicable here.

       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 has provided no evidence that

the government, or any entity, has substantially burdened his practicing of his religion. The only

religious practices Mr. McCrea identifies is “helping authors connect with their readers” and

copying and sharing information. Dkt. No. 54, at 2; Dkt. No. 61, at 3. 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. Mr. McCrea’s conclusory assertion that licensing would be “impractical” does not

alter the analysis. As the Ninth Circuit has explained “[a] substantial burden must be more than

an inconvenience.” Worldwide Church of God v. Philadelphia Church of God, Inc., 227 F.3d

1110, 1121 (9th Cir. 2000) (citations and internal quotation marks omitted).

       Here, there is a complete lack of evidence that enforcement of the Copyright Act would

have imposed a substantial burden on Mr. McCrea’s alleged religious beliefs and practices. Even


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if Mr. McCrea had introduced some evidence of burden in his opposition to the summary judgment

motion, that evidence would have been foreclosed by Mr. McCrea’s failure to respond to an

interrogatory asking him to describe “any hardships You would have faced if You were required

to cease copying, distributing, or importing into the United States any of [Mr. Van Stry’s books].”

Dkt. No. 59, at 6 n.10.

       I will therefore grant Mr. Van Stry’s motion for summary judgment on Mr. McCrea’s

“religious exemption” affirmative defense.

       For completeness, I note that Mr. McCrea referenced the Free Exercise Clause of the First

Amendment in earlier proceedings. He did not raise that issue in his opposition to Mr. Van Stry’s

motion for summary judgment, however. Although I construe Mr. McCrea’s pro se brief liberally,

I cannot adduce factual allegations or arguments beyond those in the brief. Morse v. Codilis &

Stawiarski, PC, No. 4:16-CV-279, 2017 WL 7050644, at *2 (E.D. Tex. Oct. 31, 2017) (“although

pro se briefs must be liberally construed, even pro se litigants must brief arguments in order to

preserve them”). I therefore find that Mr. McCrea has waived any argument based on the Free

Exercise clause. In any event, the Copyright Act is a neutral, generally applicable law, and Mr.

McCrea has not established that it has burdened the exercise of his alleged religion. As such, the

Free Exercise Clause does not support Mr. McCrea’s affirmative defense either. See Holt v.

Hobbs, 574 U.S. 352, 356–57 (2015); Employment Div., Dept. of Human Resources of Ore. v.

Smith, 494 U.S. 872 (1990).

           C. Remedy

       Although the issues of liability and willfulness are resolved, I require more guidance from

the parties before I can address Mr. Van Stry’s requested remedy. The first remedy Mr. Van Stry

seeks is statutory damages. The Supreme Court has held that “that the Seventh Amendment


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provides a right to a jury trial on all issues pertinent to an award of statutory damages under

§ 504(c) of the Copyright Act, including the amount itself.” Feltner v. Columbia Pictures

Television, Inc., 523 U.S. 340, 355 (1998); see also BMG Music v. Gonzalez, 430 F.3d 888, 892

(7th Cir. 2005) (noting that amount of statutory damages within the statutorily permissible range

“is a question for the jury, unless both sides agree to decision by the court”).

       In their briefs, both parties appeared to agree that I should decide the appropriate amount

of statutory damages (in the event that I granted summary judgment with respect to liability). See

Dkt. No. 50 (Motion for Summary Judgment), at 12–16; Dkt. No. 54 (Opposition), at 1 (“As per

the Copyright Act 504(c)[,] the minimum a work can be worth is $750 and it’s the defence’s

contention that if summary judgment is issued, the works be valued at such a rate.”); Dkt. No. 61

(Sur-reply), at 5 (“We should, instead, base damages on damages or what is lowest prescribed by

law. If the court deemed punitive damages necessary on top of that, the court should determine

that by the flagrancy of the offense and establish its own value. . . . Furthermore, punitive damages

may be assessed by the court – That is a fair outcome.”).

       In order to ensure that the parties want me—as opposed to a jury—to decide the issue of

statutory damages, I am going to direct each party to file a response within seven days of this order

expressly and unequivocally indicating their election. In their filings, each party should indicate

whether he waives his right to a jury trial on all issues pertinent to an award of statutory damages.

       In this regard, 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.

BMG Music, 430 F.3d at 892–93; GoPets Ltd. v. Hise, 657 F.3d 1024, 1034 (9th Cir. 2011);

Simpleville Music v. Mizell, 451 F. Supp. 2d 1293, 1300 (M.D. Ala. 2006); Cynthia Hunt Prods.,

Ltd. v. Evolution of Fitness Houston Inc., No. CIV.A. H-07-0170, 2007 WL 2363148, at *6 n.1


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(S.D. Tex. Aug. 16, 2007). In light of Mr. Van Stry’s acknowledgement that damages in this case

are likely to be illusory, Dkt. No. 50, at 22, 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.

        I have also reviewed Mr. Van Stry’s requests for a permanent injunction and costs,

including attorney’s fees.      Mr. McCrea has not objected to those requests.          Based on a

consideration of the relevant circumstances, I intend to grant Mr. Van Stry’s requests for a

permanent injunction and costs, including attorney’s fees, after the statutory damages issue has

been resolved.

                                               ***

        In sum, I will not alter my sanctions in which I ordered that the prima facie elements of

Mr. Van Stry’s willful copyright infringement claim are established for purposes of this action. I

have also granted Mr. Van Stry’s motion for summary judgment with respect to Mr. McCrea’s

remaining affirmative defenses. There is, therefore, no remaining issues with respect to liability

or willfulness that will be sent to a jury.

        The parties are directed to advise the Court within seven days of this order whether they

wish to have the Court resolve all issues pertinent to an award of statutory damages in excess of

the statutorily guaranteed minimum amount of $750 per work.


                                               - 16 -


IT IS SO ORDERED.

SIGNED this 9th day of April, 2020.


                                      _____________________________
                                      WILLIAM C. BRYSON
                                      UNITED STATES CIRCUIT JUDGE


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