What History Teaches Us About U.S. Copyright Law and Statutory Damages
5 WIPO Journal 76 (2013)
13 Pages Posted: 19 Jan 2014 Last revised: 23 Jan 2014
Date Written: 2013
This essay was written for a special issue on the history of intellectual property. It’s aims are modest. On the assumption that many readers of this issue will not be familiar with how U.S. law relies on past legal practices, the first half of this essay describes four principal areas where English and U.S. copyright history remain doctrinally relevant to modern U.S. copyright law. Historical antecedents can directly affect copyright doctrine because judges are required in these instances to consult history in deciding the questions of law presented to them. The second half of the essay then examines an instance where copyright history has been used in recent years by litigants and scholars to elucidate statutory damages. It demonstrates how recent interpretations of an earlier 1909 copyright statute — which have been offered principally to show that statutory damages under current U.S. law cannot be punitive — are misguided. By relying on long-rooted principles from English law and early U.S. law, this section reveals how a fuller historical perspective can and, in this instance, does provide a different answer.
Keywords: history, 1909, copyright, statutory damages, penalty, punitive, Thomas-Rasset, Tenenbaum, remedies
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