The Apportionment Problem in Copyright Law

24 Pages Posted: 26 Oct 2017 Last revised: 1 Nov 2017

See all articles by David McGowan

David McGowan

University of San Diego School of Law

Date Written: October 25, 2017


The Copyright Act provides for disgorgement of an infringer's profits attributable to infringement to the extent such profits are not taken into account in an award of damages to the plaintiff. Courts have long struggled with how to apportion profits so that only those attributable to infringement are disgorged. This article uses litigation between Oracle Inc. and Google Inc. to argue that parties should be given the opportunity to prove the existence or absence of a non-infringing alternative as a means of measuring profits subject to disgorgement. Contrary to the rulings of some courts, the use of NIAs is proper and indeed, depending on the facts, superior to alternative measures of disgorgement.

Suggested Citation

McGowan, David, The Apportionment Problem in Copyright Law (October 25, 2017). San Diego Legal Studies Paper No. 17-307, Available at SSRN: or

David McGowan (Contact Author)

University of San Diego School of Law ( email )

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San Diego, CA 92110-2492
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