The issue at the heart of Sullivan v. Bristol Film Studios is not merely the trivial amount of damages. Instead, the analysis from this recent case puts the principle of proportionality front and centre.
The case centres around a video made by Bristol Film Studios (BFS) for one of Mr. Soloman’s (aka Mr. Sullivan’s) tracks. The video was uploaded to YouTube by BFS upon its completion. Mr. Soloman did not approve of the video and asked the company to remove it; it was taken down about 5 days after its initial posting. YouTube counted about 100 (non-unique) views of the video before it was removed. Mr. Soloman subsequently claimed that BFS owed him damages in the order of hundreds of thousands of pounds for those views. His claim was struck by the High Court, his appeal was dismissed.
In calculating the potential damages, the judge of first instance was generous: he assumed a maximum number of unique viewers (about 50), and that 80% of those might have bought the track had they not seen the video. He nonetheless dismissed damages for which there was no evidence. This led to a maximum claim of about £50.
At a first glance at the decision from the Court of Appeal, it might appear that Soloman’s claim was struck out merely because of that court’s agreement with the court below, that the most generous measure of damages on Mr. Soloman’s claim would be in the order of about £50. Lewison L.J. points out that the high court is not required to use its resources to entertain claims of such magnitude, and the other Lords concur on this point. If the court’s analysis were complete at this point, one might reasonably conclude that any small copyright claim may simply be seen by the courts as trivial or an abuse of process (as was found here). However, there are some important points made by the court in reaching its conclusion:
1. It is made clear early in the decision (though briefly) that Mr. Soloman has no remaining possibility for injunctive relief: the video was pulled upon his request, and BFS retained only one MP3 copy of his track (for litigation purposes). Additionally, BFS was willing to undertake not to make use of the track for any purpose other than litigation without leave of the court.
2. Much of the discussion in this decision focused on the idea of a proportional response. As Lewison L.J. put it “it is only if there is no proportionate procedure by which a claim can be adjudicated that it would be right to strike it out as an abuse of process.” (Emphasis mine.) This comment has particular resonance in the current landscape of IP litigation: Sullivan was decided a short time after the UK’s formation of small claims courts to handle IP issues. As well, in January, the U.S. copyright office put out a call for suggestions on how to handle smaller IP claims in the U.S. In Canada, litigants already have this option.
3. Mr. Soloman agreed with the proposition that the court should strike his claim if the damages were in the order of £50.
One question that arises from the court’s calculation is whether their methods of calculating the measure of damages may be used by future claimants as a way of maintaining a relatively large claim (in this case, for instance, if the video had gone viral, the judge might have been looking at 1,000s of presumed unique views). In fact, whether this calculation is used by a future claimant may have to be a deciding factor in whether her claim is tenable. In this case, the court points out that had Mr. Soloman known more realistically the scale of damages, he might have had his case streamed into small claims initially – a proportionate response.
In my reading this case, it seemed that another very important factor affecting the outcome of the case was the fact that BFS had complied with Mr. Soloman’s requests in a reasonable amount of time. This was not a case where a copyright holder’s rights were flagrantly disregarded by another party. Here, BFS complied with Sullivan’s request to take the video down and agreed to limit their future use of the copyrighted material forming the basis of the dispute to litigation purposes only (or where the court was otherwise amenable). I was left with the feeling that any remaining possibility for injunctive relief would have meant that Sullivan’s claim might have been deemed appropriate for the high court stream.
Hayden McGuire is a JD candidate at the University of Saskatchewan, Faculty of Law.
