U.S. copyright law gives successful plaintiffs who promptly registered their works the ability to elect to receive an award of statutory damages, which can be granted in any amount between $750 and $150,000 per infringed work. This provision gives scant guidance about where in that range awards should be made, other than to say that the award should be in amount the court "considers just," and that the upper end of the spectrum, from $30,000 to $150,000 per infringed work, is reserved for awards against "willful" infringers. Courts have largely failed to develop a jurisprudence to guide decision-making about compensatory statutory damage awards in ordinary infringement cases or about strong deterrent or punitive damage awards in willful infringement cases. As a result, awards of statutory damages are frequently arbitrary, inconsistent, unprincipled, and sometimes grossly excessive.
This Article argues that such awards are not only inconsistent with Congressional intent in establishing the statutory damage regime, but also with principles of due process articulated in the Supreme Court's jurisprudence on punitive damage awards. Drawing upon some cases in which statutory damage awards have been consistent with Congressional intent and with the due process jurisprudence, this Article articulates principles upon which a sound jurisprudence for copyright statutory damage awards could be built. Nevertheless, legislative reform of the U.S. statutory damage rules may be desirable.
Friday, April 10, 2009
New article urges statutory damages reform
U.C. Berkeley law professor Pamela Samuelson and Berkeley Center for Law and Technology fellow Tara Wheatland have just released a timely new article titled "Statutory Damages in Copyright Law: A Remedy in Need of Reform." The article argues that copyright statutory damages are "frequently" arbitrary and excessive, and should be subject to the limits established by BMW v. Gore -- a position recently rejected by the Department of Justice in the Joel Tenenbaum case (and a similar case called Sony v. Cloud). Abstract here: