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June 8, 2004
Statutory Copyright Damages- doing the math
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)
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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 Comment2. 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 Comment3. 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 Comment4. 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.
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