Monday, August 1, 2016
Music Business/Law Tips - "Infringement - Statutory Damages"
The US Government is evaluating the Copyright Act to see if it needs to be updated to keep in step with the digital age. One of the areas it is thinking of revising is the "Statutory Damages" clause when someone infringes a copyright. The current standard per-work amount of statutory damages is set by Congress at $750-$30,000 per infringement, with an increased ceiling of up to $150,000 where infringement is found to be willful. However, to try and make awards more fair and not random - especially since with the Internet there are lots of cases of "innocent infringement" whereby users do not really know or are ignorant - the task force has recommended adding a list of factors for courts to consider when picking a number from the statutory range for an appropriate damages award (and perhaps making a new lower minimum): (1) The plaintiff’s revenues lost and the difficulty of proving damages. (2) The defendant’s expenses saved, profits reaped, and other benefits from the infringement. (3) The need to deter future infringements. (4) The defendant’s financial situation. (5) The value or nature of the work infringed. (6) The circumstances, duration, and scope of the infringement, including whether it was commercial in nature. (7) In cases involving infringement of multiple works, whether the total sum of damages, taking into account the number of works infringed and number of awards made, is commensurate with the overall harm caused by the infringement. (8) The defendant’s state of mind, including whether the defendant was a willful or innocent infringer. (9) In the case of willful infringement, whether it is appropriate to punish the defendant and if so, the amount of damages that would result in an appropriate punishment. Perhaps the Law will evolve - wait and see. Ben McLane Esq benmclane.com