Sneering at the Law: An Argument for Punitive Damages in Copyright

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R. Collins Kilgore · 15 Vand. J. Ent. & Tech. L. 637

Abstract

The Copyright Act limits statutory damages in a copyright action to one award for every work that a plaintiff can prove a defendant infringed. The maximum amount a plaintiff may recover for each work is $30,000, except in the case of willful infringement, for which that amount may be increased to a maximum of $150,000. This Note explains how this dual limitation in the Copyright Act—the one-award-per-work limitation and the cap on statutory damage amounts—allows infringers to manipulate court procedures and corporate structure so that their acts of copyright infringement may maintain profitability despite the imposition of maximum statutory damages. Such efficient willful infringement undercuts the deterrence rationale of the Copyright Act’s statutory damages provision. This Note argues that punitive damages are the most practical solution to this problem. Punitive damages may be used as a tool to encourage defendants in infringement actions to submit to the legal process and may provide copyright claimants with a more ironclad way to recover defendants’ profits when infringers refuse to submit to discovery procedures. Allowing plaintiffs to plead punitive damages presents a low risk of unfairness and abuse because defendants may avoid the imposition of punitive damages by participating in the trial phase of infringement actions and because a preexisting due process framework already exists by which courts may check excessive awards.