Congress Should Enact IPTF's Legislative Recommendations on Copyright Statutory Damages Awards, CDT Says

The Center for Democracy and Technology (CDT) urged Congress to “carefully consider -- and implement” the Internet Policy Task Force’s recommendations for amending U.S. copyright law on statutory damages to address issues that may result in excessive awards. The IPTF included the legislative recommendations in a white paper that also recommended nonlegislative solutions on the first-sale doctrine and the eligibility of remixes to claim fair use protections (see 1601280065). The IPTF recommended amending Copyright Act Section 504 to require courts and juries to consider nine factors when determining statutory damages awards, including whether the infringement was willful. Requiring consideration of those factors “would bring statutory damages in copyright cases closer in line with the goals of compensating the rightsholder and deterring future infringement without deterring legitimate activity or resulting in damage awards so beyond the pale that they undermine respect for our copyright system,” said CDT Open Internet Project Director Erik Stallman in a Friday blog post. The IPTF also recommended allowing courts more discretion to depart from the “per work” calculus in awarding damages in cases of nonwillful secondary liability by online services for large numbers of infringed works, and urging expanding eligibility for lowered “innocent infringement” damages awards. The recommendations make “abundant sense,” Stallman said. “These proposals will go a long ways toward a statutory damages regime that still achieves goals of compensation and deterrence, without overly encouraging 'copyright trolling' or unduly interfering with legitimate innovation and free expression.”