Corante

AUTHORS

Donna Wentworth
( Archive | Home | Technorati Profile)

Ernest Miller
( Archive | Home )

Elizabeth Rader
( Archive | Home )

Jason Schultz
( Archive | Home )

Wendy Seltzer
( Archive | Home | Technorati Profile )

Aaron Swartz
( Archive | Home )

Alan Wexelblat
( Archive | Home )

About this weblog
Here we'll explore the nexus of legal rulings, Capitol Hill policy-making, technical standards development, and technological innovation that creates -- and will recreate -- the networked world as we know it. Among the topics we'll touch on: intellectual property conflicts, technical architecture and innovation, the evolution of copyright, private vs. public interests in Net policy-making, lobbying and the law, and more.

Disclaimer: the opinions expressed in this weblog are those of the authors and not of their respective institutions.

What Does "Copyfight" Mean?

Copyfight, the Solo Years: April 2002-March 2004

COPYFIGHTERS
a Typical Joe
Academic Copyright
Jack Balkin
John Perry Barlow
Benlog
beSpacific
bIPlog
Blogaritaville
Blogbook IP
BoingBoing
David Bollier
James Boyle
Robert Boynton
Brad Ideas
Ren Bucholz
Cabalamat: Digital Rights
Cinema Minima
CoCo
Commons-blog
Consensus @ Lawyerpoint
Copyfighter's Musings
Copyfutures
Copyright Readings
Copyrighteous
CopyrightWatch Canada
Susan Crawford
Walt Crawford
Creative Commons
Cruelty to Analog
Culture Cat
Deep Links
Derivative Work
Detritus
Julian Dibbell
DigitalConsumer
Digital Copyright Canada
Displacement of Concepts
Downhill Battle
DTM:<|
Electrolite
Exploded Library
Bret Fausett
Edward Felten - Freedom to Tinker
Edward Felten - Dashlog
Frank Field
Seth Finkelstein
Brian Flemming
Frankston, Reed
Free Culture
Free Range Librarian
Michael Froomkin
Michael Geist
Michael Geist's BNA News
Dan Gillmor
Mike Godwin
Joe Gratz
GrepLaw
James Grimmelmann
GrokLaw
Groklaw News
Matt Haughey
Erik J. Heels
ICANNWatch.org
Illegal-art.org
Induce Act blog
Inter Alia
IP & Social Justice
IPac blog
IPTAblog
Joi Ito
Jon Johansen
JD Lasica
LawMeme.org
Legal Theory Blog
Lenz Blog
Larry Lessig
Jessica Litman
James Love
Alex Macgillivray
Madisonian Theory
Maison Bisson
Kevin Marks
Tim Marman
Matt Rolls a Hoover
miniLinks
Mary Minow
Declan McCullagh
Eben Moglen
Dan Moniz
Napsterization
Nerdlaw
NQB
Danny O'Brien
Open Access
Open Codex
John Palfrey
Chris Palmer
Promote the Progress
PK News
PVR Blog
Eric Raymond
Joseph Reagle
Recording Industry vs. the People
Lisa Rein
Thomas Roessler
Seth Schoen
Doc Searls
Seb's Open Research
Shifted Librarian
Doug Simpson
Slapnose
Slashdot.org
Stay Free! Daily
Sarah Stirland
Swarthmore Coalition
Tech Law Advisor
Technology Liberation Front
Teleread
Siva Vaidhyanathan
Vertical Hold
Kim Weatherall
Weblogg-ed
David Weinberger
Matthew Yglesias

LINKABLE + THINKABLE
AKMA
Timothy Armstrong
Bag and Baggage
Charles Bailey
Beltway Blogroll
Between Lawyers
Blawg Channel
bk
Chief Blogging Officer
Drew Clark
Chris Cohen
Crawlspace
Crooked Timber
Daily Whirl
Dead Parrots Society
Delaware Law Office
J. Bradford DeLong
Betsy Devine
Dispositive
Ben Edelman
EEJD
Ernie the Attorney
FedLawyerGuy
Foreword
How Appealing
Industry Standard
IP Democracy
IPnewsblog
IP Watch
Dennis Kennedy
Rick Klau
Wendy Koslow
Kuro5hin.org
Elizabeth L. Lawley
Jerry Lawson
Legal Reader
Likelihood of Confusion
Chris Locke
Derek Lowe
Misbehaving
MIT Tech Review
NewsGrist
OtherMag
Paper Chase
Frank Paynter
PHOSITA
Scott Rosenberg
Scrivener's Error
Jeneane Sessum
Silent Lucidity
Smart Mobs
Trademark Blog
Eugene Volokh
Kevin Werbach

ORGANIZATIONS
ARL
Berkman @ Harvard
CDT
Chilling Effects
CIS @ Stanford
CPSR
Copyright Reform
Creative Commons
DigitalConsumer.org
DFC
EFF
EPIC
FIPR
FCC
FEPP
FSF
Global Internet Proj.
ICANN
IETF
ILPF
Info Commons
IP Justice
ISP @ Yale
NY for Fair Use
Open Content
PFF
Public Knowledge
Shidler Center @ UW
Tech Center @ GMU
U. Maine Tech Law Center
US Copyright Office
US Dept. of Justice
US Patent Office
W3C


In the Pipeline: Don't miss Derek Lowe's excellent commentary on drug discovery and the pharma industry in general at In the Pipeline

Copyfight

« BlogOn | Main | Monolith - An Uninteresting Experiment in Copyright »

June 8, 2004

Statutory Copyright Damages- doing the math

Email This Entry

Posted by Elizabeth Rader

The First Circuit has issued an opinion discussing how to calculate statutory damages for copyright infringement. Venegas Hernandez v. Sonolux Records. Nos. 03-2014, 03-2015 (First Circuit June 7, 2004). 17 USC Section 504(c) states that a copyright owner can elect to recover statutory damages "For all infringements involved in the action, with respect to one work, for which any infringer is liable individually." The issue is whether that means you multiply the amount of statutory damages by the number of plaintiff's copyrighted songs involved in the suit (here, two songs) or the number of infringing works for which the defendant is liable (here, sixteen infringing albums which each included at least one of the plaintiffs' songs). Answer- the number of infringed works.

According to Judge Lynch, the only circuit to have reached this issue squarely is the D.C. Circuit, though others have assumed, without expressly deciding, that damages are based on number of works infringed. This is a change from the 1909 act, in which the focus was on the number of infringements, see LA Westerman Co. v. Dispatch Printing Co., 249 U.S. 100 (1919) (one work copied twice by same defendant supports two claims for statutory damages). The First Circuit has now held, expressly, that damages are to be calculated per infringed work, not per infringing copy. The difference for the defendants here? 1.4 million dollars, certainly worth the candle. Somewhat bad news for copyright owners, though the threat of even one scoop of statutory damages per work is enough to make most small individual defendants hand over their life savings to settle.

Comments (4) + TrackBacks (0) | Category: Laws and Regulations


COMMENTS

1. Jason Schultz on June 8, 2004 9:14 PM writes...

Note that the amount of damages (between $750 and $150,000) is still potentially based on the number of infringements, so it still matters how many infringements a plaintiff can prove. Important to consider in the RIAA lawsuit context.

Permalink to Comment

2. Joe Gratz on June 8, 2004 10:43 PM writes...

This is, incidentally, the same judge who wrote the very smart opinion in the Precious Moments case.

Permalink to Comment

3. Joe Gratz on June 8, 2004 10:56 PM writes...

Correction -- the Precious Moments judge was the judge below in this case.

It seems like you actually have to go out of your way to get statutory damages entered against you... like not showing up.

Permalink to Comment

4. Kop on June 10, 2004 9:27 AM writes...

The First Circuit acts like this is not well settled law. Gimme a break. The Ninth, Eleventh, First, Second and Fifth have all ruled the same way on this. No surprise here. The legislative history is clear as can be. Per work infringed. If someone makes 2 million copies of one copyrighted work, there is one statutory damages award capped at $30K unless wilful.

It's pretty harsh actually. If you have a starving artist that gets ripped off by a local art gallery, very few lawyers will take a $30K contingency case because it can take about $100K to litigate one of these cases. The wilful part is not always easy to show, and if they don't register the copyright, they don't even get the statutory damages. They only get actual lost profits, which on a good day might be only $1500. But, a kid with a hardrive full of coprighted songs, is probably infringing numerous works and could get hit up for millions in statutory damages. The big guys get protection, but not the little guys. You can tell who wrote these laws.

Permalink to Comment


EMAIL THIS ENTRY TO A FRIEND

Email this entry to:

Your email address:

Message (optional):




RELATED ENTRIES
Everything You Need to Know About Doing a Kickstarter
Is Patent Valuation a Leading Indicator of Trolls' Demise?
Free Music in a Capitalist Society
Art & Law in Chicago
Compare and Contrast Approaches to the DMCA
CBS to HBO: Wait for Us!
Sometime Next Year, HBO Will Become Netflix
OpenMedia vs the TPP