Full opinion text
OPINION AND ORDER (WITH FINDINGS OF FACT AND CONCLUSIONS OF LAW) PECK, United States Magistrate Judge. This case arises from PrimeTime’s satellite transmission of copyrighted NFL football game telecasts to viewers in Canada. In April 2000, the Second Circuit affirmed Judge McKenna’s permanent injunction prohibiting PrimeTime from transmitting NFL football games to Canada. National Football League v. PrimeTime 24 Joint Venture, 211 F.3d 10 (2d Cir.2000), aff'g, 98 Civ. 3778, 1999 WL 760130 (S.D.N.Y. Sept.27, 1999), & 1999 WL 945031 (S.D.N.Y. Oct.19, 1999). The issue presently before this Court is the amount of statutory damages, attorneys’ fees and costs to be awarded to the NFL for Prime-Time’s infringement. The parties have consented to decision by a Magistrate Judge pursuant to 28 U.S.C. § 636(c). (Dkt. No. 64.) For the reasons set forth below, the Court awards plaintiff NFL $2,557,500 in statutory damages and $45,792.99 in costs, but does not award the NFL attorneys’ fees. PROCEDURAL BACKGROUND The NFL’s Complaint On May 27, 1998, the NFL brought this copyright infringement action against PrimeTime seeking declaratory and in-junctive relief, statutory damages, attorneys’ fees and costs. (Dkt. No. 1: Compl., Wherefore ¶¶ A-D.) The complaint charged PrimeTime with retransmitting copyrighted NFL football game telecasts to Canada, thus exceeding the statutory license provided for certain U.S. retransmissions by the Satellite Home Viewer Act (“SHVA”). (CompLUHl, 9-10, 20-25.) The complaint alleged: 20. Although the [Satellite Home Viewer] Act authorizes delivery of network programming only to “unserved households” in the United States, defendant has repeatedly and willfully transmitted NFL game telecasts to locations outside the country. Specifically, defendant captures the over-the-air broadcast signals in the United States and retransmits the signals to one or more satellites for further retransmission abroad (either directly to satellite dish owners or to cable systems), including in Canada. 21. The League has never granted defendant the right to sell or distribute telecasts of NFL games anywhere outside (or within) the United States. (Compl.M 20-21.) Judge McKenna’s March 24,1999 Denial of PrimeTime’s Motion to Dismiss On July 24, 1998, PrimeTime moved to dismiss, arguing that “‘[t]he Complaint fails to state a claim upon which relief can be granted ... since all the actions complained of take place outside the United States. It is axiomatic that the copyright laws of the United States do not apply extraterritorially.’ ” National Football League v. PrimeTime 24 Joint Venture, 98 Civ. 3778, 1999 WL 163181 at *1 (S.D.N.Y. Mar.24, 1999) (quoting Dkt. No. 5: Prime-Time 7/24/98 Br. at 1). PrimeTime further argued that “ ‘its transmissions of the captured signals are not public performances within the meaning of the Copyright Act because .... the final destination of the NFL game signals is outside this country, and since the Act does not apply abroad, [PrimeTime’s] transmissions are outside the Act’s scope.’ ” NFL v. PrimeTime, 1999 WL 163181 at *2 (quoting Dkt. No. 16: PrimeTime 9/25/98 Reply Br. at 1-2). On March 24, 1999, Judge McKenna denied PrimeTime’s motion to dismiss. Judge McKenna found that the Copyright Act did apply because “PrimeTime’s transmission of the signals captured in the United States is ‘a step in the process by which a protected work wends its way to its audience,’ ... and an infringement, even though it takes one or more further steps for the work to reach the public.” NFL v. PrimeTime, 1999 WL 163181 at *2 (citation omitted) (quoting David v. Showtime/The Movie Channel, Inc., 697 F.Supp. 752, 759 (S.D.N.Y.1988)). Judge McKenna acknowledged that “the Ninth Circuit takes a different view.” NFL v. PrimeTime, 1999 WL 163181 at *3 (citing Allarcom Pay Television, Ltd. v. General Instrument Carp., 69 F.3d 381, 387 (9th Cir.1995) (“federal copyright law does not apply to extraterritorial acts of infringement”)). Judge McKenna concluded, however, that the “analysis in David [is] considerably more persuasive than the Ninth Circuit view.” NFL v. PrimeTime, 1999 WL 163181 at *3 Judge McKenna’s September 27, 1999 Grant of Summary Judgment to the NFL and October 18, 1999 Entry of a Permanent Injunction Against PrimeTime Soon after Judge McKenna’s denial of PrimeTime’s motion to dismiss, both parties cross-moved for summary judgment. (See Dkt. Nos. 20-24: NFL 5/28/99 SJ Papers; Dkt. Nos. 25-29: PrimeTime 6/16/99 SJ Papers; Dkt. Nos. 31-34: NFL & PrimeTime SJ Reply Papers.) On September 27, 1999, Judge McKenna denied PrimeTime’s motion, granted the NFL’s summary judgment motion in its entirety and held that a permanent injunction would be entered against PrimeTime. National Football League v. PrimeTime 24 Joint Venture, 98 Civ. 3778, 1999 WL 760130 (S.D.N.Y. Sept.27,1999). Judge McKenna found the relevant facts to be undisputed: “PrimeTime does not dispute that NFL is the owner of the copyrights in the telecasts of [the] NFL games” and “PrimeTime does not claim that it is a licensee of NFL.” NFL v. PrimeTime, 1999 WL 760130 at *1-2. In addition, “PrimeTime has admitted that ... ‘[it] made secondary transmissions of U.S. network programming including NFL game telecasts for receipt by dish owners located outside the United States’ ..., and that ‘unless enjoined, [it] intend[s] in the future to make secondary transmissions of U.S. network programming including NFL game telecasts for receipt by dish owners located outside the United States.’ ” Id. (citations omitted, bracketed material in original). Finally, Judge McKenna found that “PrimeTime does not dispute that it caused [certain NFL football] games to be retransmitted to Canada, nor that it causes, and intends to continue to cause, other NFL games of which NFL is the owner of the copyright, to be retransmitted to Canada.” Id. at *1. Judge McKenna concluded: “On these undisputed facts and admissions, under the law as the Court found it to be in the March 24, 1999 Order [denying Prime-Time’s motion to dismiss], NFL is entitled to summary judgment.” Id. at *2. Judge McKenna also held that a permanent injunction should issue: The Court perceives no reason in the present case to delay the entry of a final injunction. PrimeTime has made it clear that, unless enjoined, it will continue to transmit telecasts „of NFL games in which NFL holds the copyright via satellite to Canada, if not to other foreign countries. The presumption that the infringement of a copyright gives rise to irreparable harm has not been rebutted where, as here, an intent to infringe in the future is evident. Id. at *4. After discussing and rejecting PrimeTime’s arguments as to the scope of a final injunction, id. at *5-6, and finding “no just reason for delay” as required by Fed.R.Civ.P. 54(b), Judge McKenna concluded that: NFL is entitled to the entry of judgment: (1) declaring that PrimeTime has violated NFL’s rights under the Copyright Act by retransmitting NFL game telecasts of which NFL is the owner of the copyright to locations outside the United States; (2) permanently enjoining PrimeTime from making secondary transmissions of NFL game telecasts of which NFL is the owner of the copyright to locations outside of the United States; and (3) referring this case to a Magistrate Judge to calculate such statutory damages and attorneys’ fees as NFL may be entitled to. NFL is to submit a proposed judgment on ten business days’ notice to Prime-Time, which may object in writing to the form of the judgment. NFL v. PrimeTime, 1999 WL 760130 at *6. On October 18, 1999, Judge McKenna entered judgment and an injunction permanently enjoining PrimeTime from making 'secondary transmissions of copyrighted NFL game telecasts to locations outside the United States. (Dkt. No. 39: Judgment & Permanent Injunction, signed on Oct. 18, 1999 at 11:49 a.m.) Simultaneously, Judge McKenna denied PrimeTime’s request for a delay in the injunction’s effective date, holding that “PrimeTime’s proposal that the final injunction, found by the Court in its September 24, 1999 Memorandum and Order to be warranted, not take effect until October 29, 1999 is not warranted. Prime-Time is to take all steps necessary to comply with the injunction forthwith.” National Football League v. PrimeTime 24 Joint Venture, 98 Civ. 3778, 1999 WL 945031 at *1 (S.D.N.Y. Oct.19, 1999). Second Circuit Appeal PrimeTime appealed, and the Second Circuit stayed the injunction pending appeal. National Football League v. PrimeTime 24 Joint Venture, No. 99-9244 (2d Cir. Nov.16, 1999) (unpublished order granting motion for stay pending appeal and expediting appeal). On April 28, 2000, the Second Circuit affirmed Judge McKenna’s decision. National Football League v. PnmeTime 24 Joint Venture, 211 F.3d 10 (2d Cir.2000). The Second Circuit held: We believe the most logical interpretation of the Copyright Act is to hold that a public performance or display includes “each step in the process by which a protected work wends its way to its audience.” David [v. Showtime/The Movie Channel, Inc.], 697 F.Supp. [752] at 759 [ (S.D.N.Y.1988) ]. Under that analysis, it is clear that PrimeTime’s uplink transmission of signals captured in the United States is a step in the process by which NFL’s protected work wends its way to a public audience. In short, PrimeTime publicly displayed or performed material in which the NFL owns the copyright. Because Prime-Time did not have authorization to make such a public performance, PrimeTime infringed the NFL’s copyright. NFL v. PrimeTime, 211 F.3d at 13. The Second Circuit noted that while the Ninth Circuit’s Allarcom decision “stated that copyright infringement does not occur until the signal is received by the viewing public,” that decision “has been subject to some non-judicial criticism.” Id. The Second Circuit “accord[ed] the [Ninth Circuit’s] decision little weight largely because it contains no analysis of the Copyright Act.” Id. Damages Proceedings in this Court The parties consented to decision of the remaining issues (damages, attorneys’ fees and costs) in this case by a Magistrate Judge pursuant to 28 U.S.C. § 636(c). (Dkt. No. 64.) I held a bench trial on October 2-3, 2000. Having considered the evidence and arguments advanced by the parties at trial and in their pre- and post-trial submissions, the following constitute the Court’s Findings of Fact and Conclusions of Law, as required by Fed.R.Civ.P. 52(a). FINDINGS OF FACT The Parties PrimeTime is a satellite carrier that retransmits the signals of United States television networks to owners/renters of satellite television' dish antennas in the United States and Canada. (PrimeTime 7/10/00 Br. at 1; see also Trial Transcript [“Tr.”] at 71-72; Compl. ¶ 6; Answer ¶ 6.) The NFL is an association composed of thirty member football teams that engage in the business of exhibiting professional football games. (Comply 5). It is undisputed that the NFL owns the copyright in each of the game telecasts at issue. (Tr. 18-19; Dkt. No. 63: Pretrial Order, Stip. ¶ b.) It is also undisputed that the NFL “has satisfied each of the prerequisites of 17 U.S.C. § 411(b) for obtaining statutory-damages for each of the game telecasts retransmitted by PrimeTime 24.” (Pretrial Order, Stip. ¶ e.) PrimeTime’s Infringing Transmissions to Canada The parties stipulated as follows regarding PrimeTime’s transmissions of NFL games to Canada: • Between August 31, 1997 and December 31, 1997, PrimeTime made secondary transmissions for receipt by dish owners in Canada (hereafter, “transmissions to Canada”) of 69 NFL game telecasts. (Pretrial Order, Stip. if; Joint Exhibit (“JX”) N; Dkt. No. 52: 11/4/99 Stip. ¶ 1.) • Between August 31, 1998 and December 31, 1998, PrimeTime made transmissions to Canada of 64 NFL game telecasts. (Pretrial Order, Stip. ¶ g; JX O; 11/4/99 Stip. ¶ 2.) • During September-October 1999, PrimeTime made transmissions to Canada of 18 NFL game telecasts. (Pretrial Order, Stip. ¶ h; JX 0.) • Between November 21,1999 and January 30, 2000, PrimeTime made transmissions to Canada of 38 NFL game telecasts. (Pretrial Order, Stip. ¶ i; JX P; Dkt. No. 57: 5/31/00 2d Stip.) ® In August-September 2000, Prime-Time made transmissions to Canada of all or portions of 6 NFL game telecasts. (Dkt. No. 71: 9/19/00 Supp. Stip. & Order ¶¶ 2-3, 6-7,10; Tr. 154-56.) Accordingly, there are 180 infringing PrimeTime transmissions to Canada for which statutory damages must be calculated. (See also Tr. 170.) Trial Evidence The NFL’s Case The NFL called one witness, Frank Hawkins, NFL Senior Vice President for business affairs, responsible for the NFL’s domestic and international television arrangements. (Tr. 15-16.) Hawkins testified that the NFL receives $7.5 million in revenue from granting exclusive licenses in Canada for different NFL game packages to four different television/cable systems. (Tr. 19-21.) According to Hawkins, exclusivity is an important part of the NFL’s contracts with these Canadian licensees who “are therefore guaranteed they will be the only licensee” of a particular game package. (Tr. 21.) To protect this exclusivity, Hawkins testified that the NFL vigorously litigates against those who broadcast NFL games without a license, such as Canadian bars that show blacked-out game telecasts near a U.S. market city. (Tr. 21-22.) Hawkins testified that Prime-Time’s transmissions to Canada interfered with the NFL’s marketing strategies, its ability to deliver exclusivity to its licensees and the ability to deliver established and legitimate ratings. (Tr. 29-30, 40, 49T50.) Hawkins, however, could not quantify a particular dollar harm figure. (Tr. 40, 47-49.) Hawkins testified that when the NFL learned about PrimeTime’s activity, it investigated and then communicated with PrimeTime. (Tr. 24-26.) On June 17, 1997, before the 1997 football season, Hawkins wrote to Sid Amira, then-Chairman and CEO of PrimeTime, notifying Prime-Time that it did not have the legal right to transmit NFL game telecasts to Canada and asking PrimeTime to cease doing so. (JX A; see also Tr. 25-26.) Amira’s July 9, 1997 response letter asserted PrimeTime’s belief that it had the right to transmit NFL games to Canada under Canadian copyright law. (JX B; see aiso Tr. 27.) Hawkins responded to Amira by letter dated July 25, 1997, stating: None of the facts you recite has any bearing on the legality under United States copyright law of PrimeTime 24’s capture within the United States, and its subsequent retransmission and sale abroad, of the copyrighted programming (including NFL game telecasts) included in the U.S. network signals.... Prime-Time 24’s interception of our games and sale of those games to any viewers-foreign or domestic-is plainly unlawful under U.S. law, regardless of the status of PrimeTime 24’s activities under other countries’ laws. (JX C.) At trial, Hawkins described this letter as “saying, not in so many words but in effect, ‘Your legal theories are all wet.’ ” (Tr. 27.) Amira’s August 8, 1997 letter response to the NFL expressed PrimeTime’s position that “[b]ecause the copyright laws of the United States have no extraterritorial applicability, ‘public’ performances that occur in other countries cannot trigger liability for copyright infringement under the laws of the United States.” (JX D.) Hawkins testified that he met with Ami-ra in the summer of 1997 and “made it clear to PrimeTime 24 that we did not believe that they had the right to deliver game signals into Canada. They stated that they did. We asked them to cease and desist. They asked us what we were going to be doing about NetLink [another company retransmitting NFL games to Canada — with which the NFL later reached a settlement agreement] and wanted to make sure that we weren’t going to be proceeding against [PrimeTime] only, and that was about it.” (Tr. 27-28; see also Tr. 22, 42-45.) The NFL commenced this litigation in May 1998. (Tr. 46.) The NFL also introduced into evidence a series of “Advance Notice of Potential Infringement” letters sent by the NFL’s attorneys to PrimeTime from 1997 through 1999, each warning PrimeTime that its transmissions to Canada infringed on the NFL’s copyrights and further warning that if the transmissions did not cease, the NFL would take legal action. (JX E-M; see also Tr. 28-29.) PrimeTime’s cross-examination of Hawkins dealt with the “delay” between the NFL’s learning of PrimeTime’s possible infringement and the NFL’s June 1997 first communication with PrimeTime. (Tr. 33-42.) As the Court indicated at trial (see Tr. 36-37), since the NFL is not seeking damages for any PrimeTime transmission to Canada before the NFL’s June 17, 1997 “cease and desist” letter (JX A), the Court finds that this area of inquiry has no legal relevance. PrimeTime’s cross-examination also established that the NFL cannot quantify its actual damages or PrimeTime’s revenues from transmissions of NFL games to Canada. (Tr. 40, 47-50.) PrimeTime’s cross-examination also attempted to develop a per subscriber revenue figure for NFL games in Canada (Tr. 50-68), but the Court finds PrimeTime’s theory to be factually, analytically and legally unsound. As Hawkins testified, the NFL’s Canadian license agreements were not based on actual or estimated future subscriber/viewer data. (Tr. 69.) The NFL’s Canadian licensees were granted exclusivity rights that PrimeTime’s transmissions violated. (See Tr. 21-22, 29-30, 40, 49-50.) Thus, reliance on such a damage theory would reward PrimeTime with the equivalent of a compulsory license that neither Congress nor the NFL was willing to grant. (See Tr. 5-6; see page 475 below.) PrimeTime’s Case PrimeTime called two witnesses, Sid Amira, former Chairman and Chief Executive Officer of PrimeTime, and Susan Weinstein, Senior Vice President and general manager of PrimeTime. Sid Amira Amira is a non-practicing lawyer who joined PrimeTime as Chairman in October 1995, became CEO in June 1996, and left PrimeTime in late February 1998. (Tr. 70-72.) Amira testified that he believed Prime-Time’s transmissions of NFL games to Canada were legal because, in his view, the U.S. Copyright Act and the Satellite Home Viewer Act did not apply to PrimeTime’s transmissions to Canadian viewers. (Tr. 72-73.) Amira testified that his opinion was “substantiated” by the fact that a PrimeTime competitor, NetLink, also was transmitting NFL games to Canada. (Tr. 75-76.) Amira testified that he consulted Brandon White of the Washington, D.C. law firm of Foley, Hoag & Eliot, who orally advised PrimeTime that “the U.S. law did not pertain, and that [Prime-Time’s] distributing product in Canada was legal under Canadian law.” (Tr. 74-75.) The Court found Amira (and Weinstein) to be evasive when testifying about the legal advice on which PrimeTime relied. The Court also finds it noteworthy that there apparently is no written advice of counsel to PrimeTime, or at least none introduced into evidence. (See Tr. 14, 75.) Amira testified to the absence of any written opinion from PrimeTime’s counsel; THE COURT: ... Was that opinion of counsel expressed orally, in writing, or both? THE WITNESS [Amira]: Orally, and then in writing when we communicated to the other [ie., to the NFL], THE COURT: Is there any writing from Mr. White where his firm or any other U.S. lawyer [wrote] to you as opposed to the drafting of the letters that were sent to the NFL? THE WITNESS: Not to my recollection, no. (Tr. 75.) When Amira received the NFL’s June 17, 1997 cease and desist letter (JX A), he discussed it with counsel, and then Amira and counsel Brandon White wrote Prime-Time’s July 9, 1997 response letter, JX B. (Tr. 77.) Amira testified: Q: How did the contents of this letter that you wrote, tab B [JX B], how did the contents of that letter compare to the advice I gave you on the legality of PrimeTime 24’s retransmissions to ... Canada? A: It was exactly the same position. This was written by both of us, who strongly believed we were doing everything legal in Canada. (Tr. 77.) Amira received the NFL’s response (JX C) and Amira responded with JX D, which was “totally in concert with the advice [counsel] gave [PrimeTime].” (Tr. 78.) Amira met with Hawkins and thereafter received several letters reserving the NFL’s right to sue. (Tr. 79-81, 83-89.) PrimeTime did not change its practices as a result of the NFL’s objections. (Tr. 78, 82, 89.) The NFL did not take any further action against PrimeTime before Amira left PrimeTime in February 1998. (Tr. 81.) The Court asked Amira whether he and PrimeTime’s counsel gave “any consideration to filing a declaratory judgment action either within the Ninth Circuit or elsewhere?” and Amira responded that to the best of his recollection, they did not discuss that. (Tr. 78; see also Tr. 117.) According to Amira, PrimeTime did not cease its NFL game transmissions after the NFL’s cease and desist and notice of infringement letters because PrimeTime “strongly believed, partially on the advice of counsel, that we were doing everything legally.” (Tr. 89.) Regarding the legal risk involved in transmitting copyrighted NFL games to Canada, Amira testified as follows: Q: The reason you gave or one of the reasons you gave for PrimeTime 24 refusing to heed these warnings [by the NFL urging PrimeTime to cease its Canadian transmissions], is the advice you received from counsel that PrimeTime 24 wasn’t doing anything illegal, correct? A: Yes. Q: And that advice came from, among others, Mr. [Brandon] White and the law firm of Foley, Hoag & Eliot, correct? A: Yes. Q: Mr. White did not tell you ... there was no risk in continuing to show NFL game telecasts, correct? A: I believe he explained the risk to us and, you know, as most attorneys do, they would [not] say there is no risk, they are very careful as to their communications, telling all sides, but the strong communication is that we were doing everything legally. Q: But there was a risk and you chose to take it, correct? A: ... I mean there is a risk in doing this, yes, but we didn’t think we were taking any large risk because, No. 1, how small this was in the context of our entire business, and No. 2, we thought we were doing everything legally. [TJhere is a risk in almost everything you do. We weighed the risk, didn’t think it was large. (Tr. 89-90, emphasis added.) As noted above, the Court finds Amira’s testimony on the risk question to be evasive, and finds the absence of direct testimony or representation from PrimeTime’s counsel as to its advice regarding the level of risk that PrimeTime was incurring to be telling against PrimeTime. Susan Weinstein PrimeTime’s second witness was Susan Weinstein, PrimeTime’s Senior Vice President and general manager, who joined PrimeTime in February 1998, and became “responsible basically for the whole Prime-Time business as to financial [and] operations” in Fall 1999. (Tr. 106, 108, 109.) Regarding her knowledge of PrimeTime’s position as to the NFL’s infringement claims, Weinstein testified: Q: .... [C]ould you tell us what was the reaction that you had when you became aware of the National Football League’s position [about PrimeTime’s transmission of NFL games to Canada]? A: Well, I asked — started doing a little bit of research. I agreed with what the conventional wisdom was, that PrimeTime 24’s wisdom was that we had the right to distribute those networks for a variety of reasons. Q: ... What do you mean [by] the conventional wisdom? A: Well, SHVA, [The] Satellite Home Viewer Act, only has jurisdiction in the United States, and so we were not violating that [statute] because [the issue concerned] business in Canada. I went to the distributor contracts and saw that every single one of our distributors] ... was obligated to pay copyright to the Canadian copyright tribunal, and I also knew Primetime 24 had been in this business for many years. I read the letters that came from Sid [Amira], I actually called Sid at home to ask him about them, and he said he had directed them [with] Brandon [White], and they made a lot of sense to me. And in addition, our only competitors ... also had a business in Canada, and that did not seem to be a problem for the NFL, at all. (Tr. 112-13.) Weinstein testified that PrimeTime did not respond to the NFL’s cease and desist letters “because we believed that we had the right to deliver the games and we knew they had a difference of opinion.” (Tr. 117.) Weinstein testified about PrimeTime’s conduct during the course of this litigation. She testified that PrimeTime “proceeded with business as usual,” ie., continued to transmit NFL games to Canada, after Judge McKenna’s denial of PrimeTime’s motion to dismiss because it wasn’t a ruling that said we were doing anything wrong. It was just a ruling that said that this charge — it was not going to be dismissed, so we proceeded with business as usual, and in [fact], I believe that in that ruling, the judge even cited other courts that had differences of opinion with him. (Tr. 118, emphasis added; see also Tr. 141.) PrimeTime’s lawyers advised Prime-Time that in light of Judge McKenna’s decision denying the motion to dismiss, “it was a possibility and there was a chance” that he would grant summary judgment for the NFL. (Tr. 143.) Weinstein was unable to recall, however, whether counsel advised PrimeTime that the “possibility” was remote or likely: Q: And Primetime 24 was aware that given the Court’s ruling on the motion to dismiss, it was likely to grant the NFL’s motion for summary judgment, correct? A: I wouldn’t guess that. I would never guess what a judge is going to do. Q: Your lawyers didn’t tell you in light of Judge McKenna’s ruling on the motion to dismiss that it was likely that summary judgment was going to be granted? A: They told me it was a possibility and there was a chance it could happen. They always tell me you never know what’s going to happen until you get there. THE COURT: Was what Mr. White and the other lawyers told you, that it was a possibility, in the sense of something remote or that it was a possibility in the sense of being more likely than not, but not guaranteed? THE WITNESS: I think it was a possibility. I don’t remember if they said it was s%o, 70/30. I don’t remember exactly, but, yes, it was a possibility. Q: A substantial possibility, correct? A: I don’t recall anybody using that word. Q:' What words were used? A: I don’t recall the conversation. I mean, frankly, I was busy running the [business] and we have a staff of attorneys that were responding to motions. (Tr. 143-44, emphasis added.) The Court finds Weinstein’s testimony in this regard to be both evasive and further evidence that PrimeTime chose to ignore the effect of Judge McKenna’s decision denying the motion to dismiss. On September 27,1999, Judge McKenna granted the NFL’s summary judgment motion. National Football League v. Primetime 24 Joint Venture, 98 Civ. 3778, 1999 WL 760130 (S.D.N.Y. Sept.27, 1999). Only after that decision, Weinstein testified, did she begin “working very, very hard to come up with a system for effecting the blackouts.” (Tr. 119.) It is significant that PrimeTime continued with “business as usual” after Judge McKenna’s decision denying PrimeTime’s motion to dismiss, and further significant that Weinstein only began to “come up with” a system to black-out Canadian transmissions after Judge McKenna’s summary judgment decision. (Tr. 119, 144.) Notably absent is any testimony regarding preparation, or even consideration of preparation, for black-outs before this time. Weinstein testified that: Q: [Your lawyers] told you [on or about September 24, 1999 that Judge McKenna granted the NFL’s motion for summary judgment and] ... that Judge McKenna was going to enter an injunction against PrimeTime 24, correct? A: I believe so, yes. Q: And they told you that any injunction entered by the Court would prohibit Primetime 24 from showing NFL game telecast in Canada, correct? A: Yes. Q: Now Primetime 24 continued to retransmit NFL game telecast into Canada until Judge McKenna entered the formal injunction on October 18, 1999, correct? A: Yes. Q: PrimeTime 24 made a business decision that it was not going to implement — PrimeTime 2k made a business decision that [it] was not going to implement blackouts until formally ordered by Judge McKenna, correct? A: I believe that’s correct. Q: I would like to refer you to page 127 of your deposition.... The question is: “Q. PrimeTime 24 at no point considered implementing the blackout of telecasts prior to the time it was ordered to do so by the Court prior to October 19, 1999; is that correct?” What was your answer, Ms. Weinstein? A: “That’s correct.” Q: [Y]ou had made the business decision that until a formal injunction was entered, you weren’t going to implement the blackouts? A: I didn’t make the decision. Q: PrimeTime 24 made that decision? A: The decision was made, yes. Q: Even though at this time Prime-time ' 24 had been told by a Federal Court that its actions constituted infringement and it would be ordered to stop as soon as the Court could enter a precise form of injunction, correct? A: Yes, I guess. (Tr. 145-48, emphasis added.) Weinstein’s testimony reveals that PrimeTime consciously and deliberately disregarded the Court’s decisions until a formal injunction was entered. During the period after the motion to dismiss was denied and after the summary judgment decision finding infringement and indicating that an injunction would be entered but before the formal injunction order, PrimeTime transmitted 18 NFL football games to Canada. (Pretrial Order, Stip. ¶ h.) After the October 18, 1999 injunction was entered, PrimeTime implemented its blackout. (Tr. 148.) However, because PrimeTime had not timely started preparations for the blackout, Weinstein “wasn’t comfortable” and “felt we weren’t ready. It wasn’t tested. We were trying something new.” (Tr. 137.) She also discovered that it was “much more complex than [she-had] thought it would be.” (Tr. 144; see also Tr. 164.) On November 11, 1999, less than a month after the injunction was entered, the Second Circuit stayed the injunction pending an expedited appeal. (Tr. 148.) See National Football League v. PrimeTime 24 Joint Venture, No. 99-9244 (2d Cir. Nov.16, 1999) (unpublished order staying injunction and expediting appeal). During the period after the stay but before the Second Circuit affirmed the injunction on April 28, 2000, National Football League v. PrimeTime 24 Joint Venture, 211 F.3d 10 (2d Cir.2000), PrimeTime transmitted 33 NFL football games to Canada. (Pretrial Order, Stip. ¶ i.) Weinstein testified that PrimeTime recognized that there was a risk in transmitting NFL games to Canada while the appeal was pending before the Second Circuit: Q: ... Did Primetime 24 understand that there was a risk when it showed the games after the Second Circuit lifted the stay? A: I’m sure we understood there was a risk. Q: And Primetime 24 elected to take this risk, correct? A: We elected to continue showing the games once the Court said the injunction was lifted. Q: In fact, Primetime 24 showed every NFL game telecast available from the moment the injunction was stayed until the Rams beat the Titans in the Superbowl in January of 2000, correct? A. ... Yes. (Tr. 149-50, emphasis added.) After the Second Circuit’s April 28, 2000 decision upholding the injunction, Wein-stein testified that PriineTime intended at all times to comply with the injunction and that PrimeTime “blacked out the games.” (Tr. 121, 124.) Weinstein admitted, however, that on six separate occasions in Augush-September 2000, PrimeTime transmitted to Canada all or parts of NFL games because of equipment or personnel failures or inadvertent technical errors. (Tr. 124-27; see page 464 n. 5 above.) Weinstein testified that PrimeTime “double and triple eheck[s]” things now to prevent human error and that PrimeTime has a staff member in communication with the satellite uplink facility during game telecasts so that they can black out the game in all of North America if the equipment being used to black-out just Canada develops problems. (Tr.' 125-26, 128, 156-57.) PrimeTime’s Reliance on Advice of Counsel Defense Without Calling Counsel to Testify Despite PrimeTime’s insistence that it reasonably relied on the advice of counsel, PrimeTime failed to call any of its attorneys as witnesses or to produce even one internal memorandum or letter from PrimeTime’s counsel to PrimeTime disclosing counsel’s legal advice, and particularly counsel’s advice as to the risks in Prime-Time’s actions at various stages of this litigation. PrimeTime also failed to produce the person(s) at PrimeTime responsible for deciding to transmit NFL games (arid other programs) to Canada after Amira left PrimeTime in February 1998. Although Weinstein is responsible for “the whole PrimeTime business as to financial operations” (Tr. 108-09), she conceded that her knowledge about PrimeTime’s decision-making process concerning transmission to Canada was limited, and that the risk-weighing involved in choosing to continue to transmit NFL games (and other copyrighted broadcasts) to Canada was done by others: THE COURT: Have you had any discussions with any of the four [United States] networks, ABC, CBS, NBC or Fox after the Second Circuit decision with respect to their views about your activities? THE WITNESS [Weinstein]: No, I have not. I don’t know. THE COURT: Do you know if anyone at PrimeTime 24 has? THE WITNESS: I don’t know if anybody has. THE COURT: ... In what sense did [your lawyers] tell you or did you take from their discussion the level of risk they were telling you with respect to continuing to broadcast [copyrighted broadcasts from] the four [U.S.] networks into Canada in light of the Second Circuit decision? THE WITNESS: You know, to be perfectly honest, your Honor, in my company, I’m not the person making that decision. I’ve had discussions with my attorneys about it. I never really asked them, well, what do you think, how risky it is on the scale because that decision is out of my hands. We have had a discussion. THE COURT: Meaning your president or CEO or somebody makes that decision? THE WITNESS: The decision is made above me, yes. (Tr. 159-60, emphasis added.) The Court finds that, for a company whose entire argument for minimal damages as an innocent infringer depends on its reliance on the advice of counsel, PrimeTime has failed to present adequate and convincing evidence to support its position. CONCLUSIONS OF LAW I. STATUTORY DAMAGES: LEGAL STANDARDS AND THE PARTIES’ POSITIONS A. Applicable Legal Standards The owner of a registered copyright that has been infringed can eject to recover either actual damages or statutory damages. 17 U.S.C. §§ 504(a)(l)-(2), 504(c). The NFL does not seek actual damages in this case, but rather asks that the Court award statutory damages. (See Pretrial Order ITiv; see generally NFL 7/10/00 Br.) Statutory damages “are available without proof of plaintiffs actual damages or proof of any damages.” Starbucks Corp. v. Morgan, 99 Civ. 1404, 2000 WL 949665 at *2 (S.D.N.Y. July 11, 2000) (Peck, M.J.) (citing 17 U.S.C. § 504(c)(1); 4 Melville B. Nimmer & David Nimmer, Nimmer on Copyright § 14.04 (1999 ed.); 2 William F. Patry, Copyright Law & Practice at 1170 (1994)); see page 478 n. 17 below. As Professor Patry has explained: Since actual damages and profits frequently are difficult to prove, the Copyright Act provides for minimum and maximum statutory damages. These damages may be elected by the copyright owner at any time before final judgment is rendered, without proof of actual damages. 2 William F. Patry, Copyright Law & Practice at 1170 (fns. omitted). The Copyright Act’s provision for statutory damages is found in 17 U.S.C. § 504(c), which at the time of PrimeTime’s infringements provided as follows: (c)(1) [T]he copyright owner may elect, at any time before final judgment is rendered, to recover, instead of actual damages and profits, an award of statutory * damages for all infringements involved in the action, with respect to any one work, for which any one infringer is liable individually, ... in a sum of not less than $500 or more than $20,000 as the court considers just.... (2) In a case where the copyright owner sustains the burden of proving, and the court finds, that infringement was committed willfully, the court in its discretion may increase the award of statutory damages to a sum of not more than $100,000. In a case where the infringer sustains the burden of proving, and the court finds, that such infringer was not aware and had no reason to believe that his or her acts constituted an infringement of copyright, the court i[n] its discretion may reduce the award of statutory damages to a sum of not less than $200.... 17 U.S.C. § 504(c)(l)-(2) (1999) (emphasis added). It is well-established that district courts have broad discretion in setting the amount of statutory damages within the minimum and maximum amounts prescribed by the Copyright Act. See, e.g., Feltner v. Columbia Pictures Television, Inc., 523 U.S. 340, 345-46, 118 S.Ct. 1279, 1283, 140 L.Ed.2d 438 (1998) (“ ‘the court in its discretion’ may, within limits, increase or decrease the amount of the statutory damages”); F.W. Woolworth Co. v. Contemporary Arts, 344 U.S. 228, 231-33, 73 S.Ct. 222, 224-25, 97 L.Ed. 276 (1952); DC Comics Inc. v. Mini Gift Shop, 912 F.2d 29, 84 (2d Cir.1990) (“ Within these [statutory maxima and minima] limitations the [district] Court’s discretion and sense of justice áre controlling ... ’ ”); Fitzgerald Publ’g Co. v. Baylor Publ'g Co., 807 F.2d 1110, 1116 (2d Cir.1986) (referring to “the wide discretion the Copyright Act affords the trial court in setting the amount of statutory damages”); 4 Melville B. Nimmer & David Nimmer, Nimmer on Copyright § 14.04[B][l][a] at 14-51 to 14-54; 2 William F. Patry, Copyright Law & Practice at 1172 (“The amount to be awarded is within the district court’s discretion; so long as the award is within the statutory maxima and minima, it is not reversible.”). “ ‘The broad discretionary power given courts to make such an award serves the dual purposes of the Copyright Act: to compensate copyright owners and to provide a deterrent for would-be infringers.’ ” Schwartz-Liebman Textiles v. Last Exit Corp., 815 F.Supp. at 108 (quoting Lauratex Textile Corp. v. Allton Knitting Mills, 519 F.Supp. 730, 733 (S.D.N.Y.1981)); see also, e.g., FAN. Woolworth Co. v. Contemporary Arts, 344 U.S. at 233, 73 S.Ct. at 225; 2 William F. Patry, Copyright Law & Practice at 1172 (“The purpose of statutory damages is not only the restitution of the defendant’s ill-gotten profits, but also to discourage wrongful conduct by imposing a high enough penalty so that defendants will realize that it is less expensive to comply with the law than to violate it.”). Courts have recognized that “any attempt to reduce this determination [of statutory damages] to some kind of mathematical formula or equation is spurious.” UMG Recordings, Inc. v. MP3.Com, Inc., 00 Civ. 472, 2000 WL 1262568 at *5 (S.D.N.Y. Sept.6, 2000); see also, e.g., FAN. Woolworth Co. v. Contemporary Arts, 344 U.S. at 232, 73 S.Ct. at 225 (“Few bodies of law would be more difficult to reduce to a short and simple formula than that which determines the measure of damage recoverable for actionable wrongs. The necessary flexibility to do justice in the variety of situations which copyright cases present can be achieved only by exercise of the wide judicial discretion within limited amounts conferred by this statute” as to statutory damages.); Eastern America Trio Prods., Inc. v. Tang Elec. Corp., 97 F.Supp.2d 395, 419 (S.D.N.Y.2000) (“the statute does not afford much guidance as to how courts are to fix appropriate amounts in statutory damages cases”); United States Media Corp. v. Edde Entm’t Corp., 94 Civ. 4849, 1998 WL 401532 at *19, *21 (S.D.N.Y. July 17, 1998) (“As for the amount of a statutory award, application of the relevant factors gives us some guidance, although the ultimate decision is unavoidably arbitrary to a degree.... [and] we lack any ready formula for determining a statutory award.”). The case law teaches that courts may consider a number of factors in awarding statutory damages. As one copyright law treatise has summarized; In awarding statutory damages, the courts may consider, among other factors, the expenses saved and the profits earned by the defendant, the revenues lost by the plaintiff, the deterrent effect on the defendant and third parties, the defendant’s cooperation in providing evidence concerning the value of the infringing material, and the conduct and attitude of the parties. 2 William F. Patry, Copyright Law & Practice at 1172-73 (fns. citing cases omitted); see also, e.g., N.A.S. Import, Corp. v. Chenson Enter., Inc., 968 F.2d 250, 252-53 (2d Cir.1992); Fitzgerald Publ’g Co. v. Baylor Publ’g Co., 807 F.2d at 1117 (“in deciding upon the appropriate statutory damages award” a court may consider “the expenses saved and the profits reaped by the infringers,” “revenues lost by the plaintiff,” the defendant’s culpability and “the deterrent effect on others besides the defendant”); Eastern America Trio Prods., Inc. v. Tang Elec. Corp., 97 F.Supp.2d at 419 (“earlier cases instruct that a court may consider the defendant’s intent, the need to deter future violations, and the economic benefits and detriments to the plaintiff and defendant when determining [statutory] damage amounts”); Time Warner Cable v. Googies Luncheonette, Inc., 77 F.Supp.2d 485, 490 (S.D.N.Y. 1999) (to determine statutory damages for willfull infringements, the court “fully compensated” the plaintiff for any loss it suffered and “divest[ed] the defendants of any profits” so that defendants “reap no benefit from unlawful action”); Infinity Broadcasting Corp. v. Kirkwood, 63 F.Supp.2d 420, 427 & n. 35 (S.D.N.Y.1999); Arthur A. Kaplan Co. v. Panaria Int’l Inc., 96 Civ. 7973, 1998 WL 603225 at *3, 48 U.S.P.Q.2d 1315, 1317 (S.D.N.Y.1998); Odegard, Inc. v. Costikyan Classic Carpets, Inc., 963 F.Supp. 1328, 1340 (S.D.N.Y.1997) (“‘Relevant factors in determining the amount of statutory damages include the expenses saved and profits reaped by the defendants in connection with the infringements, the revenues lost by the plaintiffs as a result of the defendant’s conduct and the infringers’ state of mind.’ ”); Gladys Music v. Ed Smith Prods., Ltd., 1994 WL 705265 at *3. Obviously, a key factor in determining the appropriate statutory damage award is “‘the infringers’ state of mind — whether willfull, knowing or merely innocent.’ ” N.A.S. Import, Corp. v. Chenson Enter., Inc., 968 F.2d at 252 (quoting 3 Melville D. Nimmer & David Nimmer, Nimmer on Copyright § 14.04[B] at 14-41). The legal standards as to willfull or innocent infringement are discussed in Point II below. B. The Parties ’ Positions 1. The NFL The NFL argues that all of PrimeTime’s infringements were “flagrant” and “will-full.” (NFL 7/10/00 Br. at 2, 10.) Nonetheless, the NFL seeks different statutory damage amounts based on the stage in the litigation at which the infringing transmissions occurred. For PrimeTime’s transmission to Canada of 59 NFL games in 1997 and 64 NFL games in 1998 — before Judge McKenna’s March 1999 decision denying PrimeTime’s motion to dismiss — the NFL seeks statutory damages of $10,000 per game, for a total of $1,230,000. (NFL 7/10/00 Br. at 11.) For PrimeTime’s 18 infringements in September-October 1999 — after Judge McKenna’s decision on the motion to dismiss and, for 12 of the 18, also after-his decision granting the NFL summary judgment, but before the formal injunction was entered — the NFL seeks the maximum willfullness statutory damages of $100,000 per game, for a total of $1,800,000. (NFL 7/10/00 Br. at 11-12.) For PrimeTime’s 33 infringements between November 21, 1999 and January 30, 2000 — after the Second Circuit stayed the injunction and before it upheld Judge McKenna’s decision — the NFL seeks statutory damages of $10,000 per game, for a total of $330,000. (NFL 7/10/00 Br. at 12.) Finally, for PrimeTime’s 6 infringements in August-September 2000 — after the Second Circuit’s April 2000 decision affirming Judge McKenna’s injunction ruling — the NFL contends that PrimeTime’s efforts to comply with the injunction were “woefully inadequate,” PrimeTime should be found in contempt, and the NFL seeks willfullness statutory damages of $100,000 per infringement, for a total of $600,000. (Tr. 7-8,170-71.) Thus, the NFL seeks $1,230,000 for the 123 infringements in 1997 and 1998, $1,800,000 for the 18 infringements in September-October 1999, $330,000 for the 33 infringements in November 1999-January 2000, and $600,000 for the six infringements in August-September 2000, for a total of $3,960,000 in statutory damages. 2. PrimeTime PrimeTime’s position is that “at all times relevant to this dispute, PrimeTime 24 reasonably believed, in part based on the advice of its counsel, that its retransmission of [NFL] games to Canada did not infringe the NFL’s copyrights under the United States Copyright Act.” (PrimeTime 7/10/00 Br. at 2, emphasis in original.) PrimeTime argues that its infringements not only were not willfull but were innocent, and asks that the NFL be awarded the minimum, innocent infringer statutory amount of $200 per transmission. {Id. at 10, 13, 14.) PrimeTime argues that a “minimal damages award is also appropriate because the NFL has suffered little, if any, actual harm and PrimeTime 24 has enjoyed no substantial profit from its retransmission of NFL games to Canada.” {Id. at 1.) PrimeTime computes “the hypothetical cost of' a license to PrimeTime 24 on a per game basis” to be $201 {id. at 13), not-so-coineidentally almost the same as the $200 innocent infringer minimal statutory damage amount. Thus, PrimeTime’s position is that its liability is limited to $200 times 180 transmissions, for a total of $36,000. 11. STATUTORY DAMAGES: ANALYSIS The initial issue in assessing statutory damages is whether PrimeTime’s infringement was “willfull,” justifying an enhanced statutory damage award up to $100,000, or whether it was “innocent,” justifying a reduced award of as little as $200 per infringement. See, e.g., Arthur A. Kaplan Co. v. Panaria Int’l Inc., 96 Civ. 7973, 1998 WL 603225 at *3, 48 U.S.P.Q.2d 1315, 1317 (S.D.N.Y. Sept.ll, 1998) (“The initial determination to be made in assessing statutory damages is whether the infringement was willfull.”); United States Media Corp. v. Edde Entm’t Corp., 94 Civ. 4849, 1998 WL 401532 at *18 (S.D.N.Y. July 17, 1998) (“Because the amount of statutory damages may be substantially affected by whether the defendant acted willfully, we first address that question.”); Gladys Music v. Ed Smith Prods., Ltd., No. 94-CV-429, 1994 WL 705265 at *4 (N.D.N.Y. Dec. 6, 1994) (Pooler, D.J.) (“The most critical factor under consideration is the element of willfull infringement.”); Dumas v. Dagl, 88 Civ. 2293, 1990 WL 258343 at *4 (S.D.N.Y. May 22, 1990) (“The initial determination to be made in assessing statutory damages is whether the defendants’ infringement of plaintiffs’ copyright was ‘willfull’ within the meaning of § 504(c)(2) of the Copyright Act.”). “ ‘[W]illfullness’ in the context of statutory damages for copyright infringement means that the infringer either had actual knowledge that it was infringing the plaintiffs’ copyrights or else acted in reckless disregard of the high probability that it was infringing plaintiffs’ copyrights.” UMG Recordings, Inc. v. MP3.Com. Inc., 00 Civ. 472, 2000 WL 1262568 at *4 (S.D.N.Y. Sept.6, 2000); see, e.g., Hamil America, Inc. v. GFI, 193 F.3d 92, 97 (2d Cir.1999) (“ ‘The standard is simply whether the defendant had knowledge that its conduct represented infringement or perhaps recklessly disregarded the possibility.’ ”); Knitwaves, Inc. v. Lollytogs Ltd., 71 F.3d 996, 1010-11 (2d Cir.1995) (“ ‘Reckless disregard of the copyright holder’s rights ... suffices to warrant award of the enhanced damages.’”); N.A.S. Import, Corp. v. Chenson Enter., Inc., 968 F.2d 250, 252 (2d Cir.1992); Fitzgerald Publ’g Co. v. Baylor Publ’g Co., 807 F.2d 1110, 1115 (2d Cir.1986); Antenna Television, A.E. v. Aegean Video Inc., No. 95-CV-2S28, 1996 WL 298252 at *10 (E.D.N.Y. Apr.. 23, 1996); 4 Melville B. Nimmer & David Nimmer, Nimmer on Copyright § 14.04[B][3] (1999 ed.); 2 William F. Patry, Copyright Law & Practice at 1173-74 (1994). Before the Court examines whether PrimeTime’s infringements were willfull, the Court will first deal with PrimeTime’s assertion that all of its infringements were “innocent.” A. PrimeTime’s Infringements Were Not “Innocent” Under Section 504(c)(2), the Court may reduce statutory damages to as low as $200 per infringement where the “infringr er sustains the burden of proving ... that such infringer was not aware and had no reason to believe that [its] acts constituted an infringement of copyright.” 17 U.S.C. § 504(c)(2). PrimeTime argues that it reasonably believed that its transmissions of NFL games to Canada did not violate the United States Copyright Act, due to the advice of counsel and its reliance on the Ninth Circuit’s Allarcom decision. (PrimeTime 7/10/00 Br. at 2.) Consequently, PrimeTime asserts that the NFL is entitled only to the minimum damages of $200 per game (id. at 10, 13, 14), reserved by statute for “innocent infringers.” “Innocent” intent, however, is more than just the absence of willfullness. As the Second' Circuit has explained: It is plain that “willfully” infringing and “innocent intent” are not the converse of one another. Thus, it is possible in the same action for a plaintiff not to be able to prove a defendant’s willfullness, and, at the same time, for the defendant to be unable to show that it acted innocently- Fitzgerald Publ’g Co. v. Baylor Publ’g Co., 807 F.2d 1110, 1115 (2d Cir.1986); see also, e.g., Eastern America Trio Prods., Inc. v. Tang Elec. Corp., 97 F.Supp.2d 395, 419 (S.D.N.Y.2000) (an innocent infringer must “prove that it was not aware and had no reason to believe that his or her acts constituted infringement”); Arthur A. Kaplan Co. v. Panaria Int’l, Inc., 96 Civ. 7973, 1998 WL 603225 at *4, 48 U.S.P.Q.2d 1315, 1318 (S.D.N.Y. Sept.11, 1998); JBJ Fabrics Inc. v. India Garments, Inc., 92 Civ. 8324, 1994 WL 4443 at *1 (S.D.N.Y. Jan.4, 1994) (“A failure of a plaintiff in a copyright infringement action to prove willfull infringement does not mean that the defendant has sustained the burden imposed by 17 U.S.C. § 504(c)(2)(second sentence): 17 U.S.C. § 504(c) rather plainly contemplates a middle ground in the statutory damage scheme when neither plaintiff nor defendant has sustained the burden of showing, respectively, willfull or innocent infringement.”); 4 Melville D. Nimmer & David Nimmer, Nimmer on Copyright §§ 13.08, 14.04[B][2]-[3] (“ ‘willfully’ means with knowledge that the defendant’s conduct constitutes copyright infringement. Otherwise, there would be no point in providing specially for the reduction of minimum awards in the case of innocent infringement because any infringement that was nonwillfull would necessarily be innocent.”) (fns. omitted). Indeed, a defendant’s burden of proving innocent infringement has been described by one commentator as “a heavy one.” 2 William F. Patry, Copyright Law & Practice at 1175 (1994); see also, e.g., D.C. Comics Inc. v. Mini Gift Shop, 912 F.2d 29, 35 (2d Cir.1990) (“The burden is on the defendants to establish that any infringement was innocent.... [I]t is not sufficient for a defendant merely to claim such innocence .... ”). “Even for an innocent defendant, the court may still choose to award damages up to the [statutory] maximum amount.” 4 Melville B. Nimmer & David Nimmer, Nimmer on Copyright § 14.04[B][2][a] at 14-56 n. 46; see also id. § 1308 at 13-281 n. 9.1. PrimeTime has not met its burden. In its post-trial submissions PrimeTime principally relied on Infinity Broad. Corp. v. Kirkwood, 63 F.Supp.2d 420 (S.D.N.Y. 1999), to support its position that the NFL is entitled only to the $200 minimum statutory damages for innocent infringements. (See PrimeTime 10/5/00 Letter.) In Infinity Broadcasting, the defendant operated a service that retransmitted radio broadcasts over the telephone. Judge Kaplan rejected defendant’s position that the conduct fell under the “passive carrier” or “fair use” exceptions to copyright liability, but found that the defendant was not a “rip-off artist” and “had a well considered position [based on two recognized exceptions under copyright law] that his activities did not infringe [plaintiff]’s rights.” Infinity Broad. Corp. v. Kirkwood, 63 F.Supp.2d at 425-27. Judge Kaplan did not, however, reduce damages to $200 per infringement, instead awarding the “statutory minimum of $500,” i.e., he did not find defendant to be an “innocent infringer.” Id. PrimeTime does not cite any other case in either its brief or post-trial letter submission, in support of its innocent infringer claim. (See generally PrimeTime 7/10/00 Br. at 7-10; PrimeTime 10/5/00 Letter.) The Court’s independent research has not turned up any case where a defendant who knew of the plaintiffs copyright claim but disagreed with the claim was held an “innocent” infringer. Such a defendant may not be a willfull infringer, see, e.g., Infinity Broadcasting discussed above, but is not an “innocent” infringer. Use of the “innocent infringer” damage reduction of § 504(c)(2) appears to have has been limited to cases where the defendant (often unsophisticated) proves that it did not know about plaintiffs copyright and immediately ceased its infringing conduct upon being made aware of plaintiffs copyright claim. See, e.g., D.C. Comics Inc. v. Mini Gift Shop, 912 F.2d at 35-36 (“The level of sophistication of the defendant in business is an entirely proper means of determining whether or not his infringement was innocent.”); Warner Bros., Inc. v. Dae Rim Trading, Inc., 677 F.Supp. 740 (S.D.N.Y.1988) (finding innocent infringement where defendant bought dolls from wholesaler that, unknown to defendant, were of characters from plaintiffs movie; when defendant learned this, it immediately and unilaterally returned all unsold dolls), aff'd in relevant part, 877 F.2d 1120 (2d Cir.1989); see generally 4 Melville B. Nimmer & David Nimmer, Nimmer on Copyright § 14.04[B][2][a] at 14-56 to 14-57. The Court finds that PrimeTime is not an “innocent infringer,” and consequently the Court will not reduce any statutory damage award to $200 (or any other amount below $500) per infringement pursuant to § 504(c)(2). B. To Determine Whether Prime-Time Was “Willfull” and the Proper Level of Statutory Damages, the Court Must Separately Analyze PrimeTime’s Conduct During Different Time Periods in the Litigation PrimeTime’s position that it was not infringing the NFL’s copyrights was judi-dally rejected during the course of this litigation and consequently, separate analysis is required for infringements occurring during different stages of this lawsuit. See Bristol-Myers Squibb Co. v. Rhone-Poulenc Rover, Inc., 95 Civ. 8833, 1999 WL 1021565 at *2, 52 U.S-.P.Q.2d 1908 (S.D.N.Y. Nov. 10,1999). 1. PrimeTime’s 1997 and 1998 Infringing Transmissions to Canada It is undisputed that PrimeTime made 123 infringing transmissions to Canada in 1997 and 1998. {See Pretrial Order, Stip. ¶¶ f-g; Dkt. No. 52: 11/22/99 Stip. ¶¶ 1-2.) While the NFL argues that these infringements were “committed willfully after repeated advance warnings” (NFL 7/10/00 Br. at 11), the NFL only seeks statutory damages of $10,000 per 1997-98 infringement {id.), which the NFL describes as “half of the [maximum] amount for non-willfull infringements.” (Tr. 171.) The $10,000 damage amount sought by the NFL makes it unnecessary for the Court to determine whether PrimeTime’s conduct during this period was “willfull.” It remains for the Court to determine the appropriate statutory damage award within the $500-$20,000 range of § 504(c)(1). The Court has broad discretion within that range. See cases cited at pages 472-74 above. Some prior cases have awarded the $500 statutory minimum where the defendant’s defense was based on a non-frivolous but ultimately unsuccessful legal argument. See, e.g., Infinity Broad. Corp. v. Kirkwood, 63 F.Supp.2d 420, 427 (S.D.N.Y. 1999) (“statutory minimum of $500” per infringement awarded where defendant “had a well considered position that his activities did not infringe” and “[ajlthough he ultimately did not prevail, his position certainly was not frivolous”); National Football League v. Rondor, Inc., 840 F.Supp. 1160, 1170 (N.D.Ohio 1993) ($500 per infringement where the “equipment that defendants were using had not previously been judicially determined to be outside the scope of the home use exception”). However, no “mathematical formula or equation” applies. UMG Recordings, Inc. v. MP3.Com, Inc., 00 Civ. 472, 2000 WL 1262568 at *5 (S.D.N.Y. Sept.6, 2000); see also cases cited at pages 473-74 above. In this case, having considered all relevant factors and evidence, the Court believes a higher award than $500, but still at the lower end of the spectrum, is appropriate. Accordingly, the 001114; believes that the appropriate statutory damage amount for PrimeTime’s 1997-1998 infringements is $2,500 per infringement. Since there were 123 infringements during the 1997-1998 period, statutory damages for this period total $307,500. 2. PrimeTime’s September-Oetober 1999 Infringing Transmissions to Canada PrimeTime transmitted 18 NFL games to Canada in September-Oetober 1999, after Judge McKenna’s March 1999 decision denying PrimeTime’s motion to dismiss and, for 12 of the 18 transmissions, after Judge McKenna’s September 24, 1999 decision granting summary judgment to the NFL. (See Pretrial Order, Stip. ¶ h; JX 0.) The NFL seeks the maximum will-fullness statutory damages of $100,000 for each of the 18 infringements. (NFL 7/10/00 Br. at 12.) As discussed above, the willfullness standard does not require maliciousness, merely knowledge or reckless disregard: “[A] court need not find that an in-fringer acted maliciously to find willfull infringement.” Fitzgerald Pub. Co., Inc. v. Baylor Pub. Co., Inc., 807 F.2d 1110, 1115 (2d Cir.1986). “The standard is simply whether the defendant had knowledge that its conduct represented infringement or perhaps recklessly disregarded the possibility.” Twin Peaks [Prods., Inc. v. Publications Int’l, Ltd.,] 996 F.2d [1366] at 1382 [ (2d Cir.1993) ]. Castle Rock Entm’t v. Carol Publ’g Group, Inc., 955 F.Supp. 260, 266-67 (S.D.N.Y. 1997) (Sotomayor, D.J.), aff'd, 150 F.3d 132 (2d Cir.1998); see also eases cited at pages 475-76 above. There can be no doubt that PrimeTime’s conduct in September-Oetober 1999 was knowing or at least reckless. PrimeTime was aware that NFL game telecasts were copyrighted by the NFL, and PrimeTime further knew the NFL’s position that PrimeTime’s transmissions to Canada constituted copyright infringement. Prime-Time’s reliance on the advice of counsel and on the Ninth Circuit’s Allarcom decision became unreasonable after Judge McKenna’s March 1999 decision denying PrimeTime’s motion to dismiss; Judge McKenna unequivocally rejected all of PrimeTime’s legal arguments, including its reliance on the Ninth Circuit’s Allarcom decision. (See page 461 above.) Prime-Time knew (or should have known) that with its legal theory demolished, the undisputed facts would entitle the NFL to summary judgment. Nevertheless, Prime-Time “proceeded with business as usual” (Tr. 118; see also Tr. 141), despite advice from their attorneys that “it was a possibility and there was a chance” that summary judgment and an injunction would be granted. (Tr. 143;