Apr 12, 2009

Pam Samuelson Advocates For Copyright Reform in P2P Damages

From Ars Technica

Profs protest massive P2P damage awards

A new academic paper argues that statutory damages have spiraled out of control, especially in P2P cases, and that reform or abolition is necessary.

By Nate Anderson

Statutory damages in the US can be claimed by copyright holders in lieu of actual damages, and they range from $750 to $30,000 per infringement (or up to $150,000 when the infringement is "willful"). These huge ranges, and the lack of useful guidance on how to implement them, have led to both wildly inconsistent damage awards and huge penalties for small crimes....

So how do we fix the system? Pam Samuelson and Tara Wheatland, both of the University of California, Berkeley, have some suggestions.

First, though, they provide a thorough recap of the statutory damages provision in US copyright law, currently ensconced in section 504(c) of the US copyright code. The law gives little guidance about application, and "as a result, awards of statutory damages are frequently arbitrary, inconsistent, unprincipled, and sometimes grossly excessive."...

The authors provide pages of suggestions for reforming the system, privileging awards that are small multiples of damages suffered. They also argue for more judicial discretion in one direction: down. "We also think courts should have the power to lower statutory damage awards below the $750 minimum in the current statute when an award based on this minimum would be grossly disproportionate to the harm caused," they write, "as in the p2p file-sharing cases."

Finally, when Congress eventually turns to overhaul copyright law again, Samuelson and Wheatland have a final suggestion. "Congress might even want to reconsider whether statutory damages are serving a truly useful purpose in copyright law, given that the rules of evidence about proof of damages and profits are much less rigorous now than they were when statutory damages were first created and given how few other countries have statutory damage regimes."

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October 4, 2016