Reply #197: what an outrageously, ridiculously misleading headline

[onenote]

The issue on which the Obama administration opined was not whether a fine of $150,000 per music track would be justified in a particular case. Rather the issue was whether the provision in the Copyright Act that allows copyright owners to elect the option of seeking an award of statutory damages in an amount, to be decided by the judge, of not less than $200 and not more than $150,000, was constituional. The law has long provided for this form of remedy and there is no serious argument that can be made that its not within Congress' constitutional authority to do so.

By way of further explanation -- if you are the owner of a copyright (say you drew and published a cartoon) and someone took that work and reproduced and sold it without your permission -- you have a private right of action for infringment and damages under the Copyright Act. As an alternative to proving the precise amount of damages you suffered -- which may be difficult to quantify -- the law establishes, both as a form of remedial compensation and to deter infringement -- a statutory damages option. Where simple infringement is proven, the judge has the discretion, based on the facts, to award an amount between $750 and $30,000 as it determines is just. If the plaintiff proves that the infringement was done willfuly, the upper limit on allowable statutory damages increases to $150,000; if the defendant proves he/she was not aware and had no reason to believe his/her actions were infringing, the court may reduce the amount of statutory damages to as little as $200.

The issue brief by the administration was general in nature -- it related to the constitutionality of the damages provision in general, not as applied to a particular case or type of infringement. Not to put too fine a point on it -- saying that the administration expressed support for a fine of $150K per music track is bullshit.