The big three record labels notched another court victory against a broadband provider last month, but the music publishing firms aren’t happy that an appeals court only awarded per-album damages instead of damages for each song.

Universal, Warner, and Sony are seeking an en banc rehearing of the copyright infringement case, claiming that Internet service provider Grande Communications should have to pay per-song damages over its failure to terminate the accounts of Internet users accused of piracy. The decision to make Grande pay for each album instead of each song “threatens copyright owners’ ability to obtain fair damages,” said the record labels’ petition filed last week.

The case is in the conservative-leaning US Court of Appeals for the 5th Circuit. A three-judge panel unanimously ruled last month that Grande, a subsidiary of Astound Broadband, violated the law by failing to terminate subscribers accused of being repeat infringers. Subscribers were flagged for infringement based on their IP addresses being connected to torrent downloads monitored by Rightscorp, a copyright-enforcement company used by the music labels.

The one good part of the ruling for Grande is that the 5th Circuit ordered a new trial on damages because it said a $46.8 million award was too high. Appeals court judges found that the district court “erred in granting JMOL [judgment as a matter of law] that each of the 1,403 songs in suit was eligible for a separate award of statutory damages.” The damages were $33,333 per song.

Record labels want the per-album portion of the ruling reversed while leaving the rest of it intact.

All parts of album “constitute one work”

The Copyright Act says that “all the parts of a compilation or derivative work constitute one work,” the 5th Circuit panel noted. The panel concluded that “the statute unambiguously instructs that a compilation is eligible for only one statutory damage award, whether or not its constituent works are separately copyrightable.”