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:
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.


  1. Simply an observation since I have not been able to connect to the SSRN site to download the paper.

    Two facets of the law have always left me "high and dry" as I read all articles playing copyright law and the First Amendment off each other, and particularly now that statutory damages appear to be the soup de jour for some academics.

    First, it would be nice just for once to read an article pertaining to statutory damages and the attempt to lump them in to punitive damages jurisprudence. Each has reasons why they exist, and yet I have seen no article that explores those differences and then attempts to explain why the caselaw in one should be adopted to limit the other.

    Second, all this talk about the primacy of the First Amendment seems little more than academics searching for anything that fits their preconceived notions of narrow copyright, broad freedom of speech, and, hence, a "broad and vibrant public domain". Again, both copyright and freedom of speech have individual foundations upon which they were originally built. Copyright, as originally enacted, was quite limited. Freedom of speech was also quite limited, it then being generally understood at the inception of the Bill of Rights that it was concerned with "political" speech. Of course, each has expanded almost exponentially, copyright by statute and free speech by judicial decree.

    I simply do not see how anyone can present cogent arguments in this area without some form of a "stroll down memory lane" to examine the history of these two bodies of law. To date I have not read anything even remotely suggesting such a "stroll" has been undertaken.

    If this is "scholarship" then color me skeptical.

  2. Accord 83 Tex. L. Rev. 525 (2004).

  3. As a "reliable" and "unassailable" bastion of "legal insight", you may want to stop over at

    and peruse an article by yet another First Amendment v. Copyright Law academic.

    The article struck a responsive chord with me immediately upon reading merely the abstract and its repetitive use of the term "incentives". It seemed to me that the die was cast, and reading the article did not disappoint. I would critique its many points and case citations if only I had an inordinate amount of free time on my hands.

    Yes, in my personal opinion I do have concerns about the wisdom of aspects of the statutory damages provisions as a matter of good public policy. It would be, however, quite another matter to take my personal opinion and convert it into the form of a "scholarly" work, and especially a work where the crux of the argument is that "the Supreme Court is not as informed as I am".

    M. Slonecker


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