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June 8, 2004
Statutory Copyright Damages- doing the math
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.
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