SOUTHERN CREDENTIALING SUPPORT SERVICES, L.L.C., Plaintiff-Appellee Cross-Appellant
HAMMOND SURGICAL HOSPITAL, L.L.C., doing business as Cypress Pointe Surgical Hospital; HAMMOND SURGICAL HOSPITAL MANAGEMENT COMPANY, L.L.C., Defendants-Appellants Cross-Appellees
Appeals from the United States District Court for the Eastern
District of Louisiana
OWEN, Chief Judge, and HAYNES and COSTA, Circuit Judges.
COSTA, CIRCUIT JUDGE
plaintiff must usually prove damages to recover in a lawsuit.
But to encourage compliance, some laws provide automatic
damages. The Copyright Act of 1976 is an example. It has a
provision allowing a copyright holder to elect statutory
damages-in an amount the court sets between $750 and $30, 000
per infringed work, rising to a possibility of $150, 000 per
work for willful infringement-instead of actual damages.
See 17 U.S.C. § 504.
damages are not available, however, in all copyright cases. A
plaintiff cannot recover statutory damages, and sometimes
more importantly, attorney's fees, for "any
infringement" a defendant commences before the plaintiff
registered the copyright. 17 U.S.C. § 412. That
limitation encourages authors to register their works
quickly, allowing potential infringers to readily determine
whether a work is protected. Mason v. Montgomery Data,
Inc., 967 F.2d 135, 144 (5th Cir. 1992).
interpreted section 412 to bar statutory damages even for a
defendant's postregistration copying of a plaintiff's
map if copying also occurred before registration.
Id. The question this case poses is whether that bar
also applies when the defendant engages in a different type
of infringement after registration. For example, what if a
defendant distributes the work after registration rather than
continuing with the earlier copying?
2010, Southern Credentialing Support Services began providing
health care credentialing services to Hammond Surgical
Hospital. Credentialing is a process doctors must complete to
practice at hospitals. Doctors submit basic application
forms, which are common across facilities, as well as
delineation of privileges forms, which differ for each
institution to reflect hospital policies as well as state and
federal regulations. Credentialing service providers verify
the information doctors provide.
companies, like Southern Credentialing, try to obtain a
competitive advantage by designing custom forms for their
clients. Southern Credentialing created two packets of forms
for Hammond: an initial credentialing application packet and
a recredentialing packet. The initial packet was 83 pages
long, which included 8 base documents common to all
credentialing applications, several forms required by law,
and 33 specialty-specific delineations. The recredentialing
packet was 113 pages long, consisting of an original
reapplication packet, the 8 base documents, and the 33
2013, Southern Credentialing stopped providing credentialing
services to Hammond. Hammond soon contracted with another
company for credentialing services. The forms that the new
provider used contained fifty pages that were identical to
Southern Credentialing's forms. From 2013 until 2017,
doctors would register on the new provider's website and
access the application through a password-protected portal.
By 2017, the new provider had posted the documents in a way
that enabled anyone who knew where to look for the forms on
its website to access them without a password.
was working with Hammond, Southern Credentialing had not
registered any copyrights in its application packets. On
learning that Hammond was still using its forms after the
companies had parted ways, Southern Credentialing registered
a copyright for the original packet in February 2014 and the
recredentialing packet in July 2014.
days after registering the second copyright, Southern
Credentialing sent an email to Hammond asserting that
Hammond's ongoing use of the credentialing forms
infringed Southern Credentialing's copyrights. Hammond
responded that the forms were not eligible for copyright
protection and asked Southern Credentialing to identify which
documents it believed were protected. Additional exchanges
between the parties did not resolve the dispute.
Southern Credentialing filed this suit. It claimed that
Hammond infringed its copyrights over the initial and
reapplication packets. Southern Credentialing sought summary
judgment, which the district court granted as to the
existence of the copyrights and infringement.
determine damages, the district court held a bench trial.
During the trial, Southern Credentialing elected statutory
damages. The court held that it could award statutory damages
despite section 412's bar because the defendant's
post-2017 internet distribution of the packets was
"different in kind" from its pre-2017 infringing
activity. After determining that Hammond's infringement
was not willful, it awarded Southern Credentialing $5, 000
($2, 500 for each packet). The court also ruled that Southern
Credentialing was entitled to attorney's fees and costs,
though it ...