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Energy Intelligence Grp., Inc. v. Kayne Anderson Capital Advisors, L.P.

United States Court of Appeals for the Fifth Circuit

January 15, 2020, Filed

No. 18-20350 cons w/18-20615

Opinion

 [*264]  STEPHEN A. [**2]  HIGGINSON, Circuit Judge:

Plaintiffs Energy Intelligence Group, Inc. and Energy Intelligence Group (UK) Limited ("EIG") collectively publish information and news relevant to the global energy industry. One of EIG's publications is Oil Daily, a daily newsletter that provides news and analysis about the North American petroleum industry.

Defendants Kayne Anderson Capital Advisors, LP and Kayne Anderson Fund Advisors, LLC ("KA") collectively are a boutique investment firm. Energy securities make up a substantial part of KA's business. In 2004, KA began purchasing an annual Oil Daily subscription for KA partner James Baker. Between 2004 and 2014, Baker routinely shared his Oil Daily access with fellow KA employees and other third parties in violation of his subscription agreements and copyright law. KA attempted to keep EIG from discovering these activities, including by saving and sending Oil Daily as a file named "123."

In July 2014, EIG filed suit alleging numerous instances of copyright infringement and violations of the Digital Millennium Copyright Act ("DMCA"). As relevant to this appeal, KA's defense rested on two theories: (1) EIG learned of KA's infringement in 2007 but did nothing [**3]  to investigate or dissuade KA; and (2) EIG knew that many of its subscribers improperly distributed  [*265]  its newsletters but consciously declined to crack down on such sharing because litigating copyright claims against large clients was more profitable. The district court rejected KA's equitable estoppel and unclean hands defenses at summary judgment but allowed KA to proceed with a mitigation defense. The district court held that "a reasonable fact-finder could infer . . . that the subsequent alleged infringement could have been avoided."

In March 2017, EIG confirmed to KA that it would seek statutory damages on all claims. EIG then filed a pretrial memorandum arguing that KA could not invoke mitigation as a complete defense—in other words, regardless of whether EIG could reasonably have avoided or prevented KA's acts, EIG should receive damages within the mandated ranges for each infringed work and each DMCA violation.1 On December 6, 2017, during trial, the district court orally overruled EIG's argument. In May 2017, KA moved for referral to the Copyright Office, alleging that EIG's copyright registrations were based on inaccurate applications. In July 2017, the district court denied [**4]  KA's referral motion after finding no inaccuracies in EIG's applications.

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948 F.3d 261 *; 2020 U.S. App. LEXIS 1347 **; Copy. L. Rep. (CCH) P31,580; 105 Fed. R. Serv. 3d (Callaghan) 968; 2020 WL 219008

ENERGY INTELLIGENCE GROUP, INCORPORATED; ENERGY INTELLIGENCE GROUP (UK) LIMITED, Plaintiffs - Appellants Cross-Appellees v. KAYNE ANDERSON CAPITAL ADVISORS, L.P.; K.A. FUND ADVISORS, L.L.C., Defendants - Appellees Cross-AppellantsENERGY INTELLIGENCE GROUP, INCORPORATED; ENERGY INTELLIGENCE GROUP (UK) LIMITED, Plaintiffs - Appellants v. KAYNE ANDERSON CAPITAL ADVISORS, L.P.; K.A. FUND ADVISORS, L.L.C., Defendants - Appellees

Prior History:  [**1] Appeals from the United States District Court for the Southern District of Texas.

Energy Intelligence Grp., Inc. v. Kayne Anderson Capital Advisors, LP, 2017 U.S. Dist. LEXIS 116754 (S.D. Tex., July 26, 2017)Energy Intelligence Grp., Inc. v. Kayne Anderson Capital Advisors, LP, 2018 U.S. Dist. LEXIS 74174 (S.D. Tex., May 2, 2018)Energy Intelligence Grp., Inc. v. Kayne Anderson Capital Advisors, LP, 326 F.R.D. 453, 2018 U.S. Dist. LEXIS 128789 (S.D. Tex., Aug. 1, 2018)

CORE TERMS

statutory damages, mitigation, district court, infringement, Oil, damages, attorney's fees, costs, actual damage, Copyright Act, referral, post-offer, registration, Register, consequential damages, email, violations, copyright infringement, alteration, parties, profits, prevailing party, inaccuracies, quotation, users, inaccurate information, complete defense, copyright owner, trial court, deterrent

Copyright Law, Civil Infringement Actions, Jurisdiction, Registration Requirement, Damages, Types of Damages, Statutory Damages, Civil Procedure, Settlements, Offers of Judgment, Copyright Infringement Actions, Digital Millennium Copyright Act, Remedies, Remedies, Damages, Judicial Review, Governments, Legislation, Interpretation, Torts, Reductions of Damages, Measurement of Damages, Types of Damages, Digital Millennium Copyright Act, Trials, Judgment as Matter of Law, Postverdict Judgment, Deposit & Registration Requirements, Registration, Registration Certificates, Appeals, Remands