Statutory Damages in Copyright Law: A Remedy in Need of Reform

73 Pages Posted: 9 Apr 2009 Last revised: 12 Jan 2010

Pamela Samuelson

University of California, Berkeley - School of Law

Tara Wheatland

GCI

Date Written: August 1, 2009

Abstract

U.S. copyright law gives successful plaintiffs who promptly registered their works the ability to elect to receive an award of statutory damages, which can be granted in any amount between $750 and $150,000 per infringed work. This provision gives scant guidance about where in that range awards should be made, other than to say that the award should be in amount the court "considers just," and that the upper end of the spectrum, from $30,000 to $150,000 per infringed work, is reserved for awards against "willful" infringers. Courts have largely failed to develop a jurisprudence to guide decision-making about compensatory statutory damage awards in ordinary infringement cases or about strong deterrent or punitive damage awards in willful infringement cases. As a result, awards of statutory damages are frequently arbitrary, inconsistent, unprincipled, and sometimes grossly excessive.
This Article argues that such awards are not only inconsistent with Congressional intent in establishing the statutory damage regime, but also with principles of due process articulated in the Supreme Court's jurisprudence on punitive damage awards. Drawing upon some cases in which statutory damage awards have been consistent with Congressional intent and with the due process jurisprudence, this Article articulates principles upon which a sound jurisprudence for copyright statutory damage awards could be built. Nevertheless, legislative reform of the U.S. statutory damage rules may be desirable.

Suggested Citation

Samuelson, Pamela and Wheatland, Tara, Statutory Damages in Copyright Law: A Remedy in Need of Reform (August 1, 2009). William & Mary Law Review, Vol. 51, p. 439, 2009; UC Berkeley Public Law Research Paper No. 1375604. Available at SSRN: https://ssrn.com/abstract=1375604

Pamela Samuelson (Contact Author)

University of California, Berkeley - School of Law ( email )

Boalt Hall
341 North Addition
Berkeley, CA 94720-7200
United States
(510) 642-6775 (Phone)
(510) 643-2673 (Fax)

Tara Wheatland

GCI

2550 Denali St.
Suite 1000
Anchorage, AK 99503
United States

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