Thursday, May 21, 2009 attempts diagnosis of Nesson, wrestles with not-so-bizarre sheep hypothetical

The very interesting evaluates Harvard Law School professor Charles Nesson's argument that actual damages and statutory damages "are presumed to be equivalent to one another" and asks the question "Is Nesson Crazy?"

Geniocity butts heads directly with Nesson's infamous sheep metaphor:
It would be a bizarre statute indeed that offered two completely unrelated remedies within the same section: we imagine, for example, that the Court would be baffled by a statute that granted a plaintiff the choice between two remedies, one of which granted actual damages and lost profits, and the other of which granted plaintiffs the right to drive a flock of sheep across federal property on the third day of each month.
Geniocity's take?
It [Nesson's sheep hypo] doesn’t strike me as so bizarre. Statutory damages often serve the purpose of providing a remedy for a proven violation of law where the lawmakers have concluded it would be too burdensome to also require proof of damages, particularly in cases in which damages might be difficult to prove. It does not seem bizarre to believe that Congress in enacting the Copyright Act concluded that situations precisely like the one Nesson is defending — blatant individual infringements that cumulatively could have an impact on an industry but the individual effects of which are difficult to ascertain — should be subject to some liability. In addition, even if the statutory remedy bears no relationship to actual damage it can still serve a legitimate function: deterrence.
And the final diagnosis:
So where is Nesson coming from. I confess: I can’t tell.
You're not alone...

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