Why Ridiculous Statutory Rates For File Sharing Are Inappropriate
from the that's-not-what-statutory-rates-are-for dept
While I definitely disagree with how Charlie Nesson conducted Joel Tenenbaum’s defense in his file sharing case, Nesson has been posting some rather interesting posts on his blog lately, including his recent post highlighting the history of statutory awards for copyright infringement, as written by Pamela Samuelson and Tara Wheatland. While he (oddly) does not say where the writeup is from, you can find the full 2009 paper if you’d like.
We had already been discussing how the juries came up with their ridiculously high awards in the various Jammie Thomas trials, and one of our commenters (a lawyer, of course) insisted that the high rates were necessary to act as a deterrent, and even insisted this was the point of statutory rates. Except, as the history shows, that is not true at all. Statutory rates were designed to only apply when actual damages could not reasonably be assessed, and were mainly supposed to be about compensation, not deterrence:
Cases interpreting this new provision articulated its purpose as granting fair compensation to copyright owners when “the rules of law render difficult or impossible proof of damages or discovery of profits.” In keeping with this purpose, some courts refused to order defendants to pay statutory damages when actual damages or profits could be proven. Indeed, the Supreme Court held that the 1909 Act’s statutory damage provision was inapplicable when damages and profits were proven. If a successful plaintiff had suffered only nominal or no damage, the minimum of $ 250 might be awarded, but no more, in keeping with the policy that statutory damages should not be a penalty. Courts sometimes also refused to impose any statutory damages when the evidence showed no harm to the copyright owner and no profits to the infringer. In keeping with the no-penalty rule, appellate courts sometimes reduced large statutory damage awards to the minimum in close, although ultimately unsuccessful, fair use cases. Occasionally, appellate courts reduced statutory damage awards that were excessive in relation to approximate damages or profits.
We base our conclusion that statutory damages under the 1909 Act were mainly compensatory in purpose on several factors. First, the structure of § 101(b) identifies actual damages and defendant?s profits as the primary remedies for infringement, and statutory damages as an “in lieu” remedy. Second, the legislative history of the 1909 Act, as well as the case law interpreting it, view the primary impetus for adopting statutory damages as providing some relief when damages and/or profits are difficult to prove. Third, in addition to providing a range within which statutory damage awards should be made and setting a cap to prevent excessive awards, § 101(b) proffered guidelines for what Congress considered to be reasonable damages for various types of works. Fourth, the case law interpreting the 1909 Act’s statutory damage provision generally focused on its compensatory function and respected the “no penalty” direction. This is not to say that statutory damage awards under the 1909 Act lacked deterrent purposes and functions. By setting a floor of $ 250 and giving courts discretion to award up to $ 5,000, Congress surely intended to deter infringement, but the compensatory impulse was most evident in the law as applied.
Useful historical context for those who insist that a fine of $62,500 for sharing a single song for totally non-profit reasons is somehow what the law actually intended.