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Today, Prof. Pam Samuelson and co-author Tara Wheatland have published a draft of an article that puts forth the need for copyright reform, specifically to statutory damages. I have to confess I'm still digesting it, but I wanted to put this post up so others could learn about it and comment.
The article gives the reader an amazingly thorough understanding of copyright damages (primarily statutory, but there's lots of background on actual damages, too) under US law as it's evolved. All of that provides a context for the authors' case for how to reform statutory damages, as the "regime has evolved in a manner that results in too many arbitrary, inconsistent, unprincipled, and grossly excessive awards and that reform is needed." Samuelson and Wheatland provide ways to refocus the purported legislative goals of statutory damages of "compensation, deterrence, and punishment" so that statutory damages are realigned with principles of due process.
The article makes a number of suggestions for how to address the problem, including principles to guide courts' interpretation of the statute and what Congress could do to make the code clearer. The article, too, questions whether statutory damages even serve a useful purpose under copyright law, and whether they should be limited to owners who have registered claims.
Statutory damages are a very important facet of the current copyright debates, and are likely to be in the spotlight during this 111th session of Congress. This article will provide its readers an amazing depth of understanding of how we got here and useful guidance on how to address some of the problems. Kudos to its authors.