Calculating Damages Under the Digital Millennium Copyright Act: How far Should Courts go when Multiplying Statutory Awards?

57 Journal of the Copyright Society of the U.S.A. 1, Winter 2010

36 Pages Posted: 24 Mar 2009 Last revised: 12 Apr 2014

Karen A. Chesley

Independent

Date Written: August 24, 2009

Abstract

In 1998, Congress enacted the Digital Millennium Copyright Act (DMCA) in the wake of intense pressure from the entertainment industry. Among other things, the DMCA criminalized circumventing the digital protection for a copyrighted work, selling devices that can circumvent this protection, and interfering with copyright management information. Like the Copyright Act, the DMCA created a system of statutory damages awarded based on the number of “violations.”

While there has been a great deal of scholarship about the DMCA, the issue of damages has largely been ignored. As courts have begun to assess penalties for these new crimes, it is increasingly clear that the language of the DMCA provides insufficient guidance as to what constitutes a “violation” of the statute. Given that statutory damages are aggregated based on the number of violations, it is critically important that courts come to an agreement about what constitutes a discrete violation. Without any scholarship on this subject, however, courts thus far have undertaken this analysis alone.

This article proposes a framework for assessing damages that employs valuable principles embedded in traditional copyright law and seeks to implement Congress’ intent in drafting the DMCA. Such a framework would recognize that not all “violations” are alike; where cases are unlikely to involve professional pirates, limiting doctrines must be applied to avoid excessive damage assessments that were not anticipated by Congress. Until the legislative branch acts to resolve the confusion wrought by § 1203, the judiciary must ensure that the delicate balance of copyright law is not upset by the uncertainty of calculating statutory damage awards.

Keywords: Digital Millennium Copyright Act, Copyright, DMCA, statutory, violation, remedies, damages

JEL Classification: O30, O34, O38, K1, K10, K39

Suggested Citation

Chesley, Karen A., Calculating Damages Under the Digital Millennium Copyright Act: How far Should Courts go when Multiplying Statutory Awards? (August 24, 2009). 57 Journal of the Copyright Society of the U.S.A. 1, Winter 2010 . Available at SSRN: https://ssrn.com/abstract=1367522

Karen A. Chesley (Contact Author)

Independent

No Address Available

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