|Title:||Copyright Enforcement in the Digital Age: When the Remedy is the Wrong|
|Citation:||Depoorter, B. (2019) Copyright Enforcement in the Digital Age: When the Remedy is the Wrong. 66 UCLA L. Rev. 400|
|Key Related Studies:|
|About the Data|
|Data Description:||The study consists of two parts: first, a docket-study of docket records from a random sample of 957 copyright disputes filed from 1 January 2005 to 31 December 2008, and; second, a case analysis of all 102 judicial decisions on copyright statutory damages between 2005 to 2008.|
|Data Type:||Primary data|
|Secondary Data Sources:|
|Data Collection Methods:|
|Data Analysis Methods:|
|Cross Country Study?:||No|
|Government or policy study?:||No|
|Time Period(s) of Collection:||
“Statutory damage awards are controversial in copyright law. To some, statutory damages are indispensable to enable the pursuit of meritorious copyright infringement claims that otherwise are too costly to pursue. Others are convinced that the availability of statutory damages tempts plaintiffs into asserting dubious infringement claims in order to obtain generous settlement concessions from risk averse defendants. In light of these contrasting viewpoints, we face the important policy question whether statutory damages should be redesigned for the digital age or, to the contrary, be retained in their current form, given the difficulties of enforcing copyrights online.This Article conducts a comprehensive empirical study of copyright statutory damages. An extensive examination of docket entries and case law reveals a widespread practice of overclaiming of remedies in copyright litigation. Although 80 percent of plaintiffs in all disputes claim that they suffered conduct that constitutes willful infringement, courts find willful infringement in just 2 percent of cases where plaintiffs obtain a favorable verdict.The findings suggest that remedy overclaiming in copyright serves strategic purposes. For instance, by highlighting the outer range of enhanced statutory awards in complaints, plaintiffs leverage the risk aversion of defendants to induce generous settlement concessions. In order to curb opportunistic uses of the statutory damages, I provide policy suggestions that would make remedy overclaiming more costly to plaintiffs and less threatening to defendants.”
Main Results of the Study
Plaintiff’s request statutory damages in 90% of pleadings, as opposed to seeking recompense for the actual harm suffered. Similarly, plaintiff’s are likely to seek enhanced statutory damages due to alleged wilful infringement (in 81% of cases), a phenomenon that is consistent across subject-matters and litigants (large and small). However, and regardless of the frequency of these claims, courts only award enhanced statutory damages in approx. 2% of cases.
Claims for statutory damages are dominated by movie, TV, music, and software industries (accounting for over 70% of all cases surveyed), most of which result in default judgements (85%).
Despite the prevalence of claims for statutory damages, the author finds that almost half of the cases surveyed contain sparse information as to what qualifies as “wilful” infringement, with many cases (>20%) providing no information at all as to how they determined the defendant’s actions were wilful.
Policy Implications as Stated By Author
The study urges reform of the statutory damage framework, of which the author finds is being abused by opportunistic plaintiffs. They suggest deterring this by (i) increasing the costs of overclaiming (e.g. exaggerated or inflated statements about the harm caused) and (ii) reducing the benefits of overclaiming. This may be achieved by introducing guidelines and standards (that e.g. reduce the statutory award range), reducing outliers, and removing the elective statutory option upon proof of profits or plaintiff’s damages (evidencing actual harm caused).