Mastering Rubik’s Cube may be easier. Predicting the amount of statutory damages that will be awarded in copyright infringement litigation continues to confound attorneys on both sides of the fence. Why? Here are some reasons.
But first a few words of explanation. I originally wrote this post in April of 2010. I decided to update it after some of the cases I mentioned went through further appeals and retrials. I kept the same title (so you may see the earlier version come up on Google searches) but I substantially rewrote this version.
January 10, 2012
Why It’s Difficult to Predict the Amount of Statutory Damages Plaintiff Will Be Awarded in Copyright Litigation-Revised Version
April 22, 2011
Counterfeits cost brand owners billions of dollars every year. How can brand owners combat this problem? What are the best strategies they can employ and will they work?
I am delighted that Lisa Martens has given us some expert and helpful advice. Lisa is a Principal in the Southern California office of Fish & Richardson P.C. Her practice emphasizes trademark prosecution and litigation for the food service, health care, biotechnology, computer, Internet, and retail clothing industries. Her complete bio and contact information are here.
February 19, 2011
Sony v. Tenenbaum: What Are the Due Process Limitations on Awards of Statutory Damages in Copyright Litigation?
First Circuit review of Judge Gertner’s decision in Sony BMG v. Tenenbaum is in sight with argument set for April 4. In that copyright infringement case, the district court did what no court had ever done before. It threw out a jury award of $675,000 in statutory damages on due process grounds even though the award was within the statutory range set by Congress. The court instead awarded the music labels $67,500 for Tenenbaum’s near-decade of music downloading.
October 25, 2010
Sony BMG v. Tenenbaum
Here is the audio of the nine minute podcast I recently did for Suffolk University Law School discussing the district court’s decision in Sony BMG v. Tanenbaum and its impact on copyright enforcement if not overturned on appeal. If for some reason you can’t listen to it here, Legal Talk Network also posted the podcast here.
September 30, 2010
Sony BMG v. Tenenbaum: Are File-Sharing Willful Infringers in Copyright Litigation Now a Judicially Protected Class?
I know the title sounds a bit provocative. But the opinion in Sony BMG v. Tenenbaum protects a willful music downloader in copyright infringement litigation based on a bizarre interpretation of the Digital Theft Deterrence Act of 1999. Here is my article published in a recent BNA Patent Trademark & Copyright Journal (respectfully) critical of the court’s opinion.
September 3, 2010
On July 9, Judge Nancy Gertner in Sony BMG v. Tenenbaum did what no court has ever done before. The court held unconstitutional an award of statutory damages in copyright litigation even though the award was within the statutory range set by Congress. This ruling, if affirmed on appeal, will change the shape of copyright litigation for years to come.
June 30, 2010
The Association of Media Photographers recently asked me to write an article for its members explaining statutory damages in copyright litigation. I wrote the article, published in the spring 2010 ASMP Bulletin, to give copyright holders a basic understanding of what statutory damages are, how copyright holders qualify for statutory damages through registration of their copyrighted works and how courts and juries calculate these damages. If your work has been infringed and you are trying to determine the amount of statutory damages you may be entitled to, you may find the article useful. To download the published article, click here.
June 11, 2010
Below is the video of Andrew’s PLI talk on April 30 at the 2010 Advance Copyright Seminar. He explains when you must register with the Copyright Office to be entitled to statutory damages; the number of awards of statutory damages you may be entitled to when multiple parties infringe your work multiple times; when your infringed copyrights will qualify as “works” eligible for statutory damages and where in the range—from innocence to willfulness—infringing conduct falls and the statutory damages that may be assessed for that conduct.
April 5, 2010
Here Are Some More Answers to End the Confusion about Statutory Damages in Copyright Litigation (Part II)
Statutory damages in copyright litigation can be a trap for the unwary.
In Part I of the post on statutory damages, I focused on two common misconceptions about statutory damages. I explained that a copyright owner is not entitled to statutory damages for the continuation of infringing conduct post-registration that began pre-registration. I also explained that a copyright owner may recover only one award of statutory damages for multiple infringements of one copyrighted work whether committed by one infringer or by multiple infringers acting together.
March 20, 2010
Confused about Statutory Damages in Copyright Litigation? Join the Club. Here Are Some Answers (Part I)
Confused about statutory damages in copyright litigation? You are in good company.
There are limitations on the availability and amount of statutory damages and the parties against whom statutory damages will be individually assessed, all of which create misunderstandings by parties on both sides of the fence. Copyright holders mistakenly assert they are entitled to statutory damages for an infringement that occurs after they registered their work, even when this infringement continues a pattern of infringement that began before registration.