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As Sherwin wrote about last month, most of the attention at the December 13 hearing on H.R. 4279, the so-called "PRO-IP Act of 2007" was focused on one small provision, Section 104, which would have the effect of allowing a court to multiply “statutory” copyright damages for infringing a compilation by the number of individual works in the compilation. For example, if I infringed a Rolling Stones’ CD, I could be liable for damages of up to $150,000 times the number of tracks on the CD. Right now, under Section 504(c)(1) of the Copyright Act, such an infringement would only be entitled to one damage award.
Section 104’s potential to expand statutory damages beyond their already bloated state disturbed members of the Subcommittee on the Courts, the Internet and Intellectual Property who could hardly be considered advocates for copyright reform. Southern California Rep. Adam Schiff (D-CA) engaged in a debate with NBC Universal General Counsel Rick Cotton about the provision, stating that if someone gets caught stealing a car, you don’t also charge them with stealing the car radio, or stealing the suitcase in the car, so why punish one bad act multiple times? Rep. Howard Coble (R-NC), the longtime chair of the Subcommittee, also raised concerns and suggested that the Copyright Office help the Subcommittee convene a roundtable on Section 104 with stakeholders in the debate.
The roundtable is tomorrow in the House Judiciary Committee’s hearing room, and Sherwin and I will be there as one of about 30 or so attendees (the event is not open to the public or the press). The agenda is narrow, focusing only on Section 504(c)(1), its legislative history, interpretation by the courts, practical effect, whether the law has worked as intended, and whether it should be amended, and if so, whether this new Section 104 the right approach. The larger question of whether statutory damages are completely out of control and should be more limited will be the elephant in the room. Stay tuned….