THE MYSTERY OF THE ARDILA LULLE DAMAGE AWARD OF $1.6MILLION
Sonolux Record Company produced at least 24 CD records, including one which sold 6.5 million copies, all without a license (except illegal ones from ACEMLA-Latin american Music) without making any royalty payments to Guillermo Venegas or the heirs of his music. and without payment of a court sentence. The owner of the record company is Carlos Ardilla Lulle, the wealthiest man in Colombia.
The resords are still being sold in the USA and other markets without license.
How big money runs from the law and the laws does nothing about it.
In San Juan District Federal Court, Judge Juan Perez Gimenez.
Here we shall describe a mysterious $1.5 million damage award sentence in favor of the heirs of Guillermo Venegas simply vanished into thin air. These are the facts:
1. Sonolux, part of the Organización Ardila Lulle of Colombia made many recordings (24 or more, as it turned out) with Guillermo Venegas Lloveras (GVL) songs, without a license from the copyright owners. Millions of copies of the records were made by RIAA member Sonolux.
2. The heirs of GVL sued Sonolux on February 2001 alleging copyright infringement. $158 million was asked in damages. Trial by jury was requested, a constitutional right.
3. Sonolux did not answer the lawsuit.
4. On 1/24/02 Sonolux was declared to be on default for not answering the lawsuit.
5. On 1/24/03 a hearing was held to determine damage award against Sonolux. Sonolux did not appear
at the hearing. Even thought they had been notified. No trial by jury, as required by lawsuit was held, reason unknown.
6. On 2-19-03 A default Judgment of $1.6 million default judgment against Sonolux was determined by judge George Z. Singal, a visiting judge replacing temporarily the case judge, Juan Perez Gimenez. The sentence was for actual damages, as statutory damages were not allowed by the law because the infringements commenced years before the infringed songs, vever previously published, were copyright registered by plaintiffs. Default judgment can be seen here: Page 1 Page 2. No jury was involved, reasons unknown, as the lawsuit requested trial by jury. See contitutional mandate.Note: Sonolux manager, Antonio Ardila, son of owner Carlos Ardila Lulle, claimed that Sonolux did not answer the complaint because Sonolux though some other company's lawyer, whom Sonolux never contacted to agree on the matter of a lawyer representing them (wow!!!) or to check the status of the case, was representing Sonolux the case. A really tall tale. A mystery here is why no perjury charges were made by the court against Mr. Ardila.8. On 3/6/03 Sonolux makes an appearance to ask for a lower sentence. This motion was filed by attorney Federico Calaf Legrand in his only appearance as a Sonolux lawyer. The motion includes many strange and absurd claims.
9. On 4/25/03 judge Perez Gimenez reduces the $1.6million damage award to $200,000. The judge alleged that the original default judgment award was for statutory damages when in fact they were never defined as such by judge Singal. Default judgment can be seen here: Page 1 Page 2. The judge also alleged that the court had denied actual damages to plaintiffs when in fact it had not and nothing to those effect is on the Singal order. So, based on the presumption that statutory damages applied for two songs judge Perez Gimenez issued a new award of $200,000.
10. The plaintiffs appealed the Perez Gimenez decision and on 6/7/04 ordered Perez Gimenez to increase the award under the faulty theory that statutory damages applied. Says the appeal court, in error: The judgment
was based on statutory damages for sixteen albums. The fact is that judge Singal never used the words statutory in his judgment order. Default judgment can be seen here: Page 1 Page 2.
11. Based on the appeals court order, on 12/16/05, judge Perez Gimenez issues a new "statutory" damage award of $300,000.
12. On 4/5/06 Sonolux was ordered to pay plaintiffs attorneys fee of $76,783.58.
As of today (2008) Sonolux has has fled the United States to Colombia, to avoid legal processes and to date has not paid a single cent of the wrongly reduced award and legal fees. These amount now to over $450,000 when interests and late payment costs are added. This amount is about 1/2 the proper amount still due for royalties.
1-31-03 Judge Singal entered an injunction to stop further infringing activity, that is, the distribution of the records produced by Sonolux. As of late 2006 the infringing records are still being made and are widely distributed by Sonolux in the internet and local record shops.
Wikipedia: The party that fails to adhere to the injunction faces civil or criminal contempt of court and may have to pay damages or sanctions for failing to follow the court's order. In some cases breaches of injunctions are considered as serious criminal offences that merit arrest and possible prison sentences.
Sonolux is owned by Carlos Ardila Lulle, the billionaire Colombia industrialist who has about 27,000 employees in the personally owned Organización Ardila Lulle.
David M. Rogero - Sonolux
Federico Calaf Legrand - Sonolux
Heath W. Hoglund Kramer - Plaintiffs
Juan R. Torruella, Circuit Judge
John R. Gibson, Senior Circuit Judge
Sandra Lea Lynch, Circuit Judge.
Why Statutory damages are not valid for the Sonolux infringements.
Says Copyright Acrt, Title 17
Sec. 412. Registration as prerequisite to certain remedies for
In any action under this title, other than an action brought for a violation
of the rights of the author under section 106A(a) or an action instituted
under section 411(b), no award of statutory damages or of attorney's
fees, as provided by sections 504 and 505, shall be made for -
(1) any infringement of copyright in an unpublished work
commenced before the effective date of its registration; or
(2) any infringement of copyright commenced after first
publication of the work and before the effective date of its
registration, unless such registration is made within three
months after the first publication of the work.
Amendment VII - Trial by jury in civil cases. Ratified 12/15/1791.
In Suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise re-examined in any Court of the United States, than according to the rules of the common law.