April 16, 2009 | By corynne mcsherry

New Scholarship on Copyright Damages

We have often observed that one of the most pernicious aspects of U.S. copyright law is the outrageously disproportionate statutory damages an infringer may have to pay--from $750 to $150,000 per work, no matter how minimal the actual harm caused by the infringement. And we are not alone: last September, after a jury awarded $222,000 in damages based on a peer to peer file-sharer's alleged infringement of just 24 songs, a federal judge implored Congress to revisit the damages provisions of the Copyright Act. The threat of a similar award (however unlikely) has chilled far too many fair uses--few people are willing to gamble with their life savings even if they firmly believe their use is legal.

In a very welcome addition to the debate, copyright scholars Pamela Samuelson and Tara Wheatland have published a paper arguing that awards like this violate Congressional intent and basic rights of due process. "Awards of statutory damages," they observe, are "frequently arbitrary, inconsistent, unprincipled and sometimes grossly excessive." Hoping to motivate courts to handle damages awards more carefully, they lay out a series of principles for applying copyright damages provisions. Of course, the courts are still stuck with the unreasonable provisions themselves. Samuelson and Wheatland suggest that Congress should rewrite copyright statutory damages rules to give courts more flexibility, and, while it's on the subject, rethink whether we need statutory damages at all. Hear, hear.


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