Faculty Journal Articles and Book Chapters
ORCID (Links to author’s additional scholarship at ORCID.org)
Abstract
For decades, copyright scholars have waged a spirited campaign against statutory damages. Our remedial system, critics say, is an incoherent mess. The core problem is that copyright holders can recover a separate award of statutory damages for every infringed work. As a result, damages can rapidly add up in any case involving multiple works. Because the number of statutory awards is tethered to the number of works, even trivial claims can lead to crippling damages. Commentators, policymakers, and judges have criticized this system as arbitrary and overbroad. And yet it endures. This Article argues that copyright’s per-work scheme has obscured, and at times eclipsed, a more compelling paradigm of copyright damages—one that attends more closely to the defendant’s course of conduct. This new approach would allow courts to examine whether the defendant’s actions arose out of, and were rooted in, a single infringement episode. By infringement episode, I mean a chain of infringing acts that together constitute a larger factual event. When the defendant’s conduct is traceable to a single episode, courts should issue only a single statutory award—no matter how many works are at stake. This framework, in short, would substitute rigidity for flexibility. It would displace copyright’s one-award-per-work scheme and instead introduce a contextual inquiry into the defendant’s course of conduct. Doing so can mitigate the risk of outlandish awards, encourage courts to properly calibrate damages, and infuse a degree of much-needed pragmatism into our system.
Publication Title
Southern California Law Review
Document Type
Article
Keywords
Copyright, Intellectual property, Remedies, Statutory damages
Recommended Citation
Shani Shisha, Infringement Episodes, 97 S. Cal. L. Rev. 1029 (2024)
