USCA11 Case: 20-10856 Date Filed: 03/03/2021 Page: 1 of 31
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`IN THE UNITED STATES COURT OF APPEALS
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`FOR THE ELEVENTH CIRCUIT
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`No. 20-10856
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`D.C. Docket No. 9:18-cv-80843-BER
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`MIDLEVELU, INC.,
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`ACI INFORMATION GROUP,
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`versus
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` Plaintiff-Appellee,
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` Defendant-Appellant.
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`________________________
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`Appeal from the United States District Court
`for the Southern District of Florida
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`(March 3, 2021)
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`Before WILLIAM PRYOR, Chief Judge, JORDAN and MARCUS, Circuit Judges.
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`WILLIAM PRYOR, Chief Judge:
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`This appeal involves a blog operator that sued a content aggregator for
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`copyright infringement after the aggregator copied and published the blog’s
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`content. A jury sided with the blog operator. The main issue for us is whether the
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` [PUBLISH]
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`IN THE UNITED STATES COURT OF APPEALS
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`FOR THE ELEVENTH CIRCUIT
`________________________
`
`No. 20-10856
`________________________
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`D.C. Docket No. 9:18-cv-80843-BER
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`MIDLEVELU, INC.,
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`ACI INFORMATION GROUP,
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`versus
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` Plaintiff-Appellee,
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` Defendant-Appellant.
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`________________________
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`Appeal from the United States District Court
`for the Southern District of Florida
`_______________________
`
`(March 3, 2021)
`
`Before WILLIAM PRYOR, Chief Judge, JORDAN and MARCUS, Circuit Judges.
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`WILLIAM PRYOR, Chief Judge:
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`This appeal involves a blog operator that sued a content aggregator for
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`copyright infringement after the aggregator copied and published the blog’s
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`content. A jury sided with the blog operator. The main issue for us is whether the
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`USCA11 Case: 20-10856 Date Filed: 03/03/2021 Page: 2 of 31
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`district court should have allowed the jury to decide whether the aggregator had an
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`implied license to copy and publish the blog’s content. Although the district court
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`employed a too narrow understanding of an implied license, we conclude that a
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`jury could not have reasonably inferred that the blog impliedly granted the
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`aggregator a license to copy and publish its content. The aggregator also argues
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`that the district court erred when it instructed the jury about statutory damages,
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`permitted the jury to consider ineligible works in awarding damages, failed to
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`consult with the Register of Copyrights about the blog operator’s alleged fraud on
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`her office, and denied the aggregator’s motion for judgment as a matter of law
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`based on its defense of fair use. Because no reversible error occurred, we affirm.
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`I. BACKGROUND
`MidlevelU, Inc., formerly a limited liability company and currently doing
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`business as ThriveAP, operates a website that provides resources for midlevel
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`healthcare providers, such as nurse practitioners and physician assistants. Erin
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`Tolbert, a nurse practitioner, founded MidlevelU in 2012. MidlevelU generates
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`revenue through resources it offers, including various educational programs. It also
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`publishes a free blog designed to attract potential customers to its revenue-
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`generating resources.
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`MidlevelU makes the full text of its blog articles available in an RSS—or
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`“really simple syndication”—feed. It has used the RSS feed since the blog’s
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`inception to allow readers to easily read its articles. MidlevelU designed its
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`blogging platform so that its RSS feed would distribute the full text of the blog
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`instead of only headlines and summaries of recent articles. It also coded its website
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`to instruct search engines that they may copy and archive every page on the site.
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`MidlevelU included a copyright notice on its website and RSS feed, with a date
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`range from 2012 to the present year, but it did not include a copyright notice for
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`each article.
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`Newstex, LLC, doing business as ACI Information Group, is a wholesale
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`aggregator of news publications. It primarily sells collections of licensed news
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`content to companies. In 2013, it created the Scholarly Blog Index, a curated index
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`of abstracts and full-text articles of academic blogs.
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`To create the Index, Newstex compiled a repository of bibliographic
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`information for thousands of blogs. It copied into the repository full-text content
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`from sources its news-aggregation business had licensed. It also subscribed to RSS
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`feeds for thousands of blogs for which it did not have a license agreement to use
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`full-text content. Through the RSS feeds, Newstex received new articles posted to
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`the blogs. It ran the articles through software that generated summaries of the
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`articles. The entries in the Index for these blog articles included bibliographic
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`information about the author and the blog, the computer-generated summary of the
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`article, and a link to the original post. Newstex also added a tab labeled “original”
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`to each entry, available only to subscribers. It embedded an “iFrame” in that tab so
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`that clicking on the tab opened a window showing the original, fully browsable
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`web page, including the full-text content of each article—a “live snapshot”—
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`within the Index website.
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`It offered Index subscriptions to academic libraries, a few of which
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`subscribed. From 2015 to 2017, Newstex subscribed to the MidlevelU blog’s RSS
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`feed and included its content in the Index. In 2018, Newstex discontinued the
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`Index because it was not profitable.
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`In early 2017, Tolbert found that excerpts of her blog articles were appearing
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`on the Index website. To fully access the Index, Tolbert paid for a personal
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`subscription. She searched for “MidlevelU” within the Index, which turned up 823
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`entries. It upset her that MidlevelU’s content appeared in the Index and that the
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`computer-generated abstracts poorly represented its content. It also upset her that
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`the use of iFrames kept readers on the Index website instead of directing them to
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`MidlevelU’s website where they could purchase MidlevelU’s products.
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`Meanwhile, Tolbert registered the 50 most recent MidlevelU articles for
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`copyright protection with the United States Copyright Office. MidlevelU often
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`republished its own articles and deleted the original versions in the process. But
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`Tolbert did not check to see if the articles she registered were republications.
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`On March 7, 2017, MidlevelU emailed Newstex a cease-and-desist letter
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`demanding that it remove MidlevelU’s content from the Index immediately.
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`MidlevelU asserted that Newstex had posted “a lengthy portion,” not merely
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`“summaries,” “abstracts,” or “headlines,” of more than 800 MidlevelU articles.
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`And it complained that, for paying subscribers, Newstex posted a “snapshot” of
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`each article. Newstex removed the content from the Index that same day. It also
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`coded links to entries on the Index for MidlevelU articles so that they would now
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`redirect to MidlevelU’s website. On March 20, 2017, Newstex informed
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`MidlevelU that the content had been removed.
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`A few months later, Tolbert again searched for MidlevelU’s content online.
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`Her search results revealed that although the content was no longer available on the
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`Index website, entries for the content still appeared in website repositories of
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`university libraries. These entries credited ACI as the source of the information.
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`And at least one library also credited ACI as the content’s publisher and directed
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`visitors to view MidlevelU’s full-text content in ACI’s website—“[s]ubscribers
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`only.”
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`In June 2018, MidlevelU sued Newstex for copyright infringement. In
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`response, Newstex asserted copyright-registration invalidity, implied license, and
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`fair use as affirmative defenses. And it asserted two counterclaims seeking
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`declaratory judgments against MidlevelU. Newstex asked the district court to
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`declare that MidlevelU was not entitled to statutory damages for 18 articles
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`because they were registered more than three months after the original publication
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`date. And it requested that the district court declare invalid the registrations of 16
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`of those articles on the ground that MidlevelU knew that the asserted publication
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`dates for those articles were inaccurate when it applied for registration and so it
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`committed fraud on the Copyright Office. MidlevelU elected to seek statutory
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`damages, instead of actual damages, for all 50 registered articles at issue. 17
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`U.S.C. § 504.
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`Newstex moved in limine to bar MidlevelU from introducing evidence or
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`presenting argument about MidlevelU’s 773 unregistered articles on the Index. But
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`during the final pretrial conference, Newstex conceded that evidence about the
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`articles were admissible to provide context for the parties’ history. The district
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`court said it would allow the evidence, but it would instruct the jury that “there is
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`no allegation in this case that anything other than the 50 articles that are at issue in
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`this case were improperly utilized by Newstex.” Later, the district court explained
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`that evidence about these unregistered articles “goes to willfulness and potentially
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`to statutory damages,” and so it was admissible. Fed R. Evid. 404(b).
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`MidlevelU filed its own motion in limine. Because Newstex did not timely
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`disclose him as an expert witness, the district court barred Christopher Moyer,
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`Newstex’s Chief Technology Officer, from testifying that it is widely understood
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`that websites distributing content through RSS feeds welcome others to redistribute
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`that content. Moyer had made a statement to that effect in a sworn declaration in
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`support of Newstex’s motion for summary judgment based on its defense of
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`implied license.
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`The district court held a four-day trial. MidlevelU asked the district court to
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`remove two articles from the proposed verdict form; it conceded that those articles
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`were ineligible for statutory damages because it did not timely register them.
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`Newstex moved for judgment as a matter of law on several grounds: insufficient
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`proof of copyright validity, that no statutory damages were available for articles
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`that were untimely registered, its implied-license defense, and its fair-use defense.
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`MidlevelU moved for judgment as a matter of law as to three of Newstex’s
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`affirmative defenses: fraud on the Copyright Office, fair use, and implied license.
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`The district court granted MidlevelU’s motion on implied license after considering
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`two theories of the defense but denied the other motions.
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`In its jury charge, the district court explained that in determining the amount
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`to award for a particular work, the jury could consider several factors. The district
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`court reminded the jury that it heard testimony about approximately 800 articles,
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`including articles other than those alleged to be infringed. It instructed the jury that
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`it “may not award damages for any of those other works . . . [it] may only award
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`damages for the works that . . . are the core of this case.” “However,” the district
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`court continued, the jury “may consider those other works and Newstex’s conduct
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`with regard to the other works in deciding the amount of damages for any
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`infringement that [it] find[s].” Newstex had objected to this instruction during the
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`charge conference. The district court overruled the objection because it understood
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`that the unregistered articles could be considered “to establish willfulness” as “the
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`factors [for consideration of] the statutory damages [include] the circumstances of
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`the infringement[ and] the need to deter future infringement.”
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`The jury found that MidlevelU proved it owned a valid registered copyright
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`in 43 out of 48 articles. And it found that Newstex willfully infringed those 43
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`articles. The jury found that Newstex did not prove its fair-use defense or fraud on
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`the Copyright Office for any articles. Interrogatory number four asked the jury if
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`16 articles were ineligible for statutory damages because MidlevelU untimely
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`registered them. The jury said yes to all 16. It awarded $7,500 in statutory damages
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`for each of the 27 eligible articles, for a total award of $202,500. Newstex renewed
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`its motion for judgment as a matter of law and moved for a new trial or for
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`remittitur, all of which the district court summarily denied.
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`II. STANDARDS OF REVIEW
`We review de novo a grant or denial of a judgment as a matter of law.
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`Thosteson v. United States, 331 F.3d 1294, 1298 (11th Cir. 2003). “In considering
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`the sufficiency of the evidence that supports the jury’s verdict, we review the
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`evidence in the light most favorable to, and with all reasonable inferences drawn in
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`favor of, the nonmoving party.” Montgomery v. Noga, 168 F.3d 1282, 1289 (11th
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`Cir. 1999) (internal quotation marks omitted). But the nonmovant “must put forth
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`more than a mere scintilla of evidence suggesting that reasonable and fair-minded
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`persons in the exercise of impartial judgment might reach different conclusions.”
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`Thosteson, 331 F.3d at 1298 (internal quotation marks omitted). “Credibility
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`determinations, the weighing of the evidence, and the drawing of legitimate
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`inferences from the facts are jury functions, not those of a judge.” Cleveland v.
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`Home Shopping Network, Inc., 369 F.3d 1189, 1193 (11th Cir. 2004) (internal
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`quotation marks omitted). We review de novo any questions of law raised by the
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`motion. Montgomery, 168 F.3d at 1289.
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`“We review jury instructions de novo to determine whether they misstate the
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`law or mislead the jury to the prejudice of the objecting party.” Conroy v. Abraham
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`Chevrolet–Tampa, Inc., 375 F.3d 1228, 1233 (11th Cir. 2004) (internal quotation
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`marks omitted). If the instructions accurately reflect the law, the trial judge has
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`“wide discretion as to the style and wording employed in the instruction.” Johnson
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`v. Barnes & Noble Booksellers, Inc., 437 F.3d 1112, 1115 (11th Cir. 2006). “Jury
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`instructions are subject to harmless error review.” Fid. Interior Constr., Inc. v. Se.
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`Carpenters Reg’l Council, 675 F.3d 1250, 1259 (11th Cir. 2012) (internal
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`quotation marks omitted). We will reverse and order a new trial only when we are
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`“left with a substantial and ineradicable doubt as to whether the jury was properly
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`guided in its deliberations.” Broaddus v. Fla. Power Corp., 145 F.3d 1283, 1288
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`(11th Cir. 1998) (internal quotation marks omitted).
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`We review for abuse of discretion the denial of a motion for a new trial.
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`Kerrivan v. R.J. Reynolds Tobacco Co., 953 F.3d 1196, 1204 (11th Cir. 2020). A
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`district court should grant a motion for new trial on evidentiary grounds only when
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`“the verdict is against the great, and not merely the greater, weight of the
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`evidence.” King v. Exxon Co., U.S.A., 618 F.2d 1111, 1116 (5th Cir. 1980). The
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`deferential abuse-of-discretion standard “is particularly appropriate where a new
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`trial is denied and the jury’s verdict is left undisturbed.” Rosenfield v. Wellington
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`Leisure Prods., Inc., 827 F.2d 1493, 1498 (11th Cir. 1987).
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`III. DISCUSSION
`We divide our discussion in five parts. We first discuss whether the district
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`court should have permitted the jury to consider whether MidlevelU granted
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`Newstex an implied license. Second, we consider whether the district court
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`erroneously instructed the jury on statutory damages. We then consider whether
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`the district court permitted the jury to award statutory damages for ineligible
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`works. Next, we address whether the district court erred by failing to consult the
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`Register of Copyrights about possible fraud on her Office. Finally, we discuss
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`whether Newstex was entitled to judgment as a matter of law based on its defense
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`of fair use.
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`A. The District Court Did Not Err by Granting Judgment as a Matter of
`Law Against Newstex on its Implied-License Defense.
`A nonexclusive license to use copyrighted material “may be granted orally,
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`or may even be implied from conduct.” Jacob Maxwell, Inc. v. Veeck, 110 F.3d
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`749, 752 (11th Cir. 1997) (internal quotation marks omitted); see 17 U.S.C.
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`§§ 101, 204(a). An implied license is an affirmative defense to a claim of copyright
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`infringement, so an alleged infringer bears the burden of proving that a copyright
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`owner granted the alleged infringer an implied license. Latimer v. Roaring Toyz,
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`Inc., 601 F.3d 1224, 1235 (11th Cir. 2010).
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`In Latimer, we described one way to create an implied license. Id. We held
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`that “[a]n implied license is created when one party (1) creates a work at another
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`person’s request; (2) delivers the work to that person; and (3) intends that the
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`person copy and distribute the work.” Id. The district court read this precedent to
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`mean that Newstex could not succeed on its implied-license defense because it
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`could not satisfy the first element of the Latimer test. But the district court misread
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`Latimer.
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`Newstex argues, and we agree, that Latimer did not create an exclusive test.
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`Latimer described the creation of an implied license in a work-for-hire relationship
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`without addressing whether or how an implied license might be created in other
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`contexts. We have never held that the Latimer test provides the only avenue for
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`proving that a copyright holder granted an implied license to an alleged infringer.
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`And leading copyright authorities condemn “transmut[ing] [the] three [Latimer]
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`factors into the only applicable test.” 3 Melville B. Nimmer & David Nimmer,
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`Nimmer on Copyright § 10.03[A][7] & n.69.6a (rev. ed. 2018); accord 2 William
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`F. Patry, Patry on Copyright § 5:131 (2007).
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`Circumstances outside a work-for-hire situation may also give rise to an
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`implied license. Baisden v. I’m Ready Prods., Inc., 693 F.3d 491, 501–02 (5th Cir.
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`2012); see also Photographic Illustrators Corp. v. Orgill, Inc., 953 F.3d 56, 60–64
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`(1st Cir. 2020); Oddo v. Ries, 743 F.2d 630, 634 (9th Cir. 1984); Falcon Enters.,
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`Inc. v. Publishers Serv., Inc., 438 F. App’x 579, 581 (9th Cir. 2011). But see
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`Muhammad-Ali v. Final Call, Inc., 832 F.3d 755, 762–63 (7th Cir. 2016);
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`SmithKline Beecham Consumer Healthcare, L.P. v. Watson Pharms., Inc., 211
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`F.3d 21, 25 (2d Cir. 2000). Creating material at another’s request is not the essence
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`of a license; an owner’s grant of permission to use the material is.
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`A license is “[a] permission . . . to commit some act that would otherwise be
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`unlawful.” License, Black’s Law Dictionary (11th ed. 2019); see Robert W.
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`Gomulkiewicz et al., Licensing Intellectual Property: Law and Application 4 (2d
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`ed. 2011) (“A ‘license’ is a grant of permission.”); see generally Christopher M.
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`Newman, A License Is Not a “Contract Not To Sue”: Disentangling Property and
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`Contract in the Law of Copyright Licenses, 98 Iowa L. Rev. 1101 (2013) (arguing
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`that copyright licenses, like land licenses under common law, sound in property,
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`and attributing the confusion that they sound only in contract to the pre-1976
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`Copyright Act doctrine of indivisibility). When an owner’s conduct “clearly”
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`manifests “a consent to . . . use” of copyrighted material, the owner impliedly
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`grants a nonexclusive license. De Forest Radio Tel. Co. v. United States, 273 U.S.
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`236, 241 (1927); see also License, 2 Bouvier’s Law Dictionary (14th ed. 1874)
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`(“An implied license is one which is presumed to have been given from the acts of
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`the party authorized to give it.”). A nonexclusive license is a “mere waiver of the
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`right to sue” for infringement. De Forest, 273 U.S. at 242 (internal quotation marks
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`omitted); see also Jacob Maxwell, 110 F.3d at 753.
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`Courts have recognized permission to use copyrighted material in web-based
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`contexts vastly different from the facts in Latimer. Field v. Google Inc., 412 F.
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`Supp. 2d 1106, 1116 (D. Nev. 2006); accord Parker v. Yahoo!, Inc., No. 07-2757,
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`2008 WL 4410095, at *3–4 (E.D. Pa. Sept. 25, 2008). In Field, a website owner
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`sued Google for posting archived copies of the site’s pages, which included
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`copyrighted content. Field, 412 F. Supp. 2d at 1109–10. Google presented
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`evidence that it is well known within the Internet industry that websites can be
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`coded to tell search-engine web crawlers—automated programs that “crawl” the
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`web to locate, copy, and archive webpages for a search-engine index—not to copy
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`their webpages or display archived copies of the webpages on the search-engine
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`index. Id. at 1110, 1112–13. Absent this affirmative instruction, a search engine
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`like Google infers permission to copy and archive the webpages. Id. at 1116. Yet
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`the plaintiff had coded his website to allow web crawlers to copy and archive all its
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`pages, and even admitted that he knew about Google’s practices. Id. at 1113–14.
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`Because Google could reasonably interpret the plaintiff’s conduct as the grant of a
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`license for this use, Google succeeded on its implied-license defense. Id. at 1116.
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`Field recognized an industry practice where search engines using web
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`crawlers construe permission to use material in a limited way and for a particular
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`purpose. Christopher M. Newman, “What Exactly Are You Implying?”: The
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`Elusive Nature of the Implied Copyright License, 32 Cardozo Arts & Ent. L.J. 501,
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`529–31 (2014). In this manner, a website is like a brick-and-mortar business that
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`“licenses the general public to enter the premises for business purposes,” an entry
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`that would otherwise constitute a trespass. Jon W. Bruce & James W. Ely, Jr., The
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`Law of Easements and Licenses in Land § 11:2, at 807 (2020); see Restatement
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`(Second) of Torts § 330(e) (Am. Law Inst. 1965). But as in the brick-and-mortar
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`context, a person may not infer permission beyond the customary scope of the
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`license, such as if the person sought to enter a business through a back window
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`instead of the front door or for a nonbusiness purpose like throwing a party.
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`Newstex argues that it could succeed on its implied-license defense as
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`Google did in Field. But regardless of whether Field was correct, the district court
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`did not err in rejecting this theory. Cf. Monika Isia Jasiewicz, Comment, Copyright
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`Protection in an Opt-Out World: Implied License Doctrine and News Aggregators,
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`122 Yale L.J. 837, 846 (2012) (explaining that because “an opt-out scheme for
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`gaining copyright holders’ permission online represents a significant departure
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`from the traditional framework of American copyright law, . . . . some courts have
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`been hesitant to extend Field’s reach beyond the narrow search engine context”).
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`Newstex failed to present substantial evidence that MidlevelU impliedly granted
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`permission to use its copyrighted content in the way Newstex did. Newstex
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`presented testimony about search-engine web crawlers and the coding standards
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`that tell crawlers what they may copy. And it introduced evidence that the code for
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`the MidlevelU website allowed any web crawler to copy any of its pages. But
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`Newstex never presented evidence that it used a web crawler to collect content like
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`Google does. On the contrary, Newstex presented testimony that it collected
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`content by “grab[bing] [it] through RSS feeds.” Implied permission to enter
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`through a front door (web crawler) does not also imply permission to enter through
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`a back window (RSS feed).
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`Newstex’s evidence about RSS feeds fares no better. Newstex stresses that
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`MidlevelU took affirmative steps to disseminate the full text of its content—
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`instead of only summaries or headlines as many blogs did—through its RSS feed
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`without any restrictions. But Newstex failed to present evidence of an industry
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`practice that would allow a jury to infer that disseminating content—regardless of
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`how much—through an RSS feed without restrictions implies permission to copy
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`and publish that content on another website. Cf. Geophysical Serv., Inc. v. TGS-
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`NOPEC Geophysical Co., 784 F. App’x 253, 255–58 (5th Cir. 2019). Newstex
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`introduced no evidence that any other websites republished content received from
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`an RSS feed, much less that the practice was customarily accepted. Nor did
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`Newstex present evidence that MidlevelU knew about the practice and permitted it.
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`Cf. De Forest, 273 U.S. at 241; Baisden, 693 F.3d at 501–02; Jacob Maxwell, 110
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`F.3d at 753.
`
`The district court did not err by deciding as a matter of law that Newstex
`
`could not succeed on its implied-license defense. The only evidence before the jury
`
`related to personal use of RSS-distributed content. Newstex presented testimony
`
`explaining that RSS is used as an alternative to a web browser to read content: an
`
`RSS feed stores the articles that it receives from a website, and a human then reads
`
`the articles though an RSS reader. This testimony aligns with Tolbert’s testimony
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`that MidlevelU set up its RSS feed to make its content “easier for [its readers] to
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`access.” Implied permission to enter the front door to shop (read the content
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`through an RSS reader for personal purposes) does not imply permission to enter
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`16
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`
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`USCA11 Case: 20-10856 Date Filed: 03/03/2021 Page: 17 of 31
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`and throw a party (sell computer-generated summaries paired with iFrames
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`showing the full-text content). Newstex failed to present evidence that would have
`
`allowed the jury to infer that MidlevelU granted an implied license to copy and
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`publish the content of its blog.
`
`B. The District Court Did Not Err by Instructing the Jury That It Could
`Consider Unregistered Articles in its Calculation of Statutory Damages.
`Newstex argues that the jury that should not have been allowed to consider
`
`evidence about MidlevelU articles that appeared on the Index but that MidlevelU
`
`did not register with the Copyright Office when the jury determined statutory
`
`damages. MidlevelU elected to pursue statutory damages. 17 U.S.C. § 504.
`
`Newstex insists that permitting consideration of the unregistered works
`
`circumvented the few limits on statutory damages. See id. § 412(2). We disagree.
`
`The district court gave the jury our pattern instruction, which lists several
`
`factors for a jury to consider in determining the appropriate amount of statutory
`
`damages to award: “the profits [the defendant] earned because of the infringement;
`
`the revenues that [the plaintiff] lost because of the infringement; the difficulty of
`
`proving [the plaintiff’s] actual damages; the circumstances of the infringement;
`
`whether [the defendant] intentionally infringed [the plaintiff’s] copyright; and
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`deterrence of future infringement.” Eleventh Circuit Pattern Jury Instructions
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`(Civil Cases) § 9.32 (2013); see id. cmt. 4 (citing Cable/Home Commc’n Corp. v.
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`Network Prods., Inc., 902 F.2d 829, 850 (11th Cir. 1990), and F.W. Woolworth Co.
`
`17
`
`
`
`USCA11 Case: 20-10856 Date Filed: 03/03/2021 Page: 18 of 31
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`v. Contemp. Arts, Inc., 344 U.S. 228, 233 (1952)). The district court explained to
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`the jury that it admitted evidence about the unregistered works “for the limited
`
`purpose of helping [the jury] evaluate” these factors and determine an amount of
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`statutory damages to award.
`
`Newstex’s conduct with respect to the unregistered works was, at least,
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`relevant to the willfulness of the infringement and the need to deter future
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`violations. Cable/Home Commc’n, 902 F.2d at 851–52. We need not decide
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`whether the unregistered works were relevant to any other factor because Newstex
`
`argues only that the jury could not consider the unregistered works at all. And
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`Newstex cites no authority to support that argument.
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`To the extent that the instructions were overbroad, any error was harmless.
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`Fid. Interior Constr., 675 F.3d at 1259. The district court instructed the jury that it
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`could not award damages for the unregistered works. And we presume that a jury
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`follows its instructions. United States v. Almanzar, 634 F.3d 1214, 1223 (11th Cir.
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`2011). The completed verdict form also confirms that the jury understood it could
`
`award damages for only the registered works. The jury awarded damages for 27
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`infringed articles. It awarded $7,500 per article—well within the available range of
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`$750 to $150,000 per willfully infringed work. See 17 U.S.C. § 504(c)(1)–(2). And
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`it correctly multiplied those numbers to arrive at its total award. Nothing suggests
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`the jury was misled, especially when one considers that it could have awarded
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`18
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`
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`USCA11 Case: 20-10856 Date Filed: 03/03/2021 Page: 19 of 31
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`$750 to $30,000 per work if it found that the infringement was not willful. See id.
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`§ 504(c)(1). Newstex makes no argument that multiplying the bottom of the range
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`by a factor of 10 is unreasonable for the added factor of willfulness.
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`Newstex also complains about the admission of evidence about these
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`unregistered works. But it fails to explain a specific objection to any evidentiary
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`ruling, so it has abandoned that issue. Sapuppo v. Allstate Floridian Ins. Co., 739
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`F.3d 678, 680–81 (11th Cir. 2014).
`
`C. The District Court Did Not Abuse its Discretion by Denying Newstex’s
`Motion for a New Trial on the Basis of the Jury’s Statutory-Damages
`Award.
`Newstex asks for a new trial because, in its view, the jury erroneously
`
`awarded statutory damages for works that were ineligible for such damages.
`
`Statutory damages are not available for “any infringement of copyright
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`commenced after first publication of the work and before the effective date of its
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`registration, unless such registration is made within three months after the first
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`publication of the work.” 17 U.S.C. § 412(2). Newstex challenges whether
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`MidlevelU proved that it registered the 27 articles for which the jury awarded
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`statutory damages within that three-month window.
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`We disagree with Newstex. None of its arguments merits a new trial. And
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`the district court did not abuse its discretion in denying one.
`
`19
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`
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`USCA11 Case: 20-10856 Date Filed: 03/03/2021 Page: 20 of 31
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`A “certificate of a registration made before or within five years after first
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`publication of the work” constitutes “prima facie evidence of the validity of the
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`copyright and of the facts stated in the certificate.” Id. § 410(c) (emphasis added).
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`The date of publication is a “fact[] stated in the certificate.” Id.; see Gaste v.
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`Kaiserman, 863 F.2d 1061, 1064 (2d Cir. 1988). And the dates listed in the
`
`certificates are presumed to be true. United Fabrics Int’l, Inc. v. C&J Wear, Inc.,
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`630 F.3d 1255, 1258 (9th Cir. 2011). Newstex bore the burden of rebutting that
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`presumption. Id. And the jury could have reasonably found that Newstex failed to
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`do so. Gaste, 863 F.2d at 1064.
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`According to Newstex, the original publication dates listed in the certificates
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`were not necessarily accurate because Tolbert testified both that she relied on the
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`most recent publication date when she registered the works and that MidlevelU
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`occasionally republished blog posts. But MidlevelU needed only to provide proof
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`of its certificates of registration, which it did. Newstex had to persuade the jury
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`that it should not presume the dates listed in those certificates were accurate.
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`United Fabrics, 630 F.3d at 1258. Yet—with two exceptions—for every article
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`that the jury awarded statutory damages, Newstex introduced evidence that
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`confirmed that the original publication date listed on the certificates was correct or
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`that the date was within the three-month window. Newstex succeeded in proving
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`that the listed dates for 16 articles—those listed in jury interrogatory number
`
`20
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`
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`USCA11 Case: 20-10856 Date Filed: 03/03/2021 Page: 21 of 31
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`four—were incorrect and that those articles were untimely registered, so
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`infringement of those articles could not support statutory damages.
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`Newstex argues that it provided evidence that two other articles also were
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`published earlier than the purported publication dates and over three months before
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`registration. But Newstex waived this argument. United States v. Phillips, 834 F.3d
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`1176, 1183 (11th Cir. 2016). Newstex agreed to a verdict form that did not give the
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`jury the option to find that those two articles were published before the three-
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`month window. The only articles that the jury could find were ineligible for
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`statutory damages because MidlevelU failed to timely register them were the 16
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`articles listed in interrogatory number four. What’s mo
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