Are “Concurrent Damages” A Good Idea For Copyright Law?

Money bagsAbout a year ago, we wrote about the final chapter in the copyright saga of Joel Tenenbaum, the Boston University student who was found liable for copyright infringement by a District of Massachusetts jury, based on his admitted sharing of about 30 songs via online peer-to-peer networks. Because the jury found that his infringement was willful, it awarded the plaintiffs a whopping $675,000 in statutory damages, or about $22,500 for each violation.  By contrast, the retail value of the music Tenenbaum shared was reportedly about $450.

Tenenbaum’s lawyers, and even trial judge Nancy Gertner, tried to  reduce the award, on due process grounds, to an amount that they thought would more proportionately reflect the harm Tenenbaum’s infringement caused. However, the First Circuit rejected these arguments and held that, because the Copyright Act’s statutory damages provision clearly allows for awards of up to $150,000 for each willful violation, there was no basis for reducing an award of only $22,500 per violation, a mere 15% of the maximum that could have been awarded under the statute.

Concurrent Damages

Now, imagine that Judge Gertner had the option of ordering that the damages for the thirty violations run “concurrently,” so that the jury verdict stood but Tenenbaum only had to pay $22,500 (the equivalent of a single song’s worth of damages, according to the jury). Allowing judges such an option, to use when appropriate, is the basic premise of Concurrent Damages, an article recently published in the Virginia Law Review by Columbia Law School Professor Bert I. Huang. Analogous to the concept of concurrent sentencing in criminal law, concurrent damages would allow judges to group civil statutory damages in such a way as to reflect the harm caused, thereby neutralizing the potential arbitrariness and disproportionality inherent in inflexible statutory mechanisms.

A Copyright Fix?

Professor Huang frequently refers to copyright law to make his point. For example, imagine two students, Infringer A and Infringer B, who each download entire seasons of their favorite serial television programs. Infringer A’s program has a season of ten one-hour episodes. Infringer B’s program has a season of twenty half-hour episodes. Both have caused effectively the same quantum of harm, and both derive effectively the same quantum of benefit (assuming viewing time is a legitimate basis for assessing harm and benefit in such a case).  Yet, all other factors being equal, Infringer B will pay twice as much in statutory damages, because she downloaded twice as many “works.”

Is that fair? Some would argue that it is; that you take your eggshell copyright owner as you find him. But let’s assume for a moment that you don’t think such variations are fair, or at the very least you are concerned with the public perception, based on cases like Tenenbaum, that copyright damages are arbitrary and unjust. How should the problem be fixed?

One possible solution is to amend Section 504 of the Copyright Act to add additional definitions and procedures for additional scenarios, but Professor Huang argues that such tweaks could introduce even more rigidity into the system.  Another idea is to increase judicial discretion, but this could lead to increased unpredictability and even more egregious variation in results.

Professor Huang proposes that concurrent damages, by contrast, would avoid the vagueness concomitant with unfettered discretion while at the same time allowing the court the flexibility to collapse smaller units of infringement into larger ones in order to make damages more proportionate to the type of harm caused. Professor Huang’s full article is available at the Virginia Law Review website and through the Social Science Research Network.

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