About | HeinOnline Law Journal Library | HeinOnline Law Journal Library | HeinOnline

83 Tex L. Rev. 525 (2004-2005)
Grossly Excessive Penalties in the Battle against Illegal File-Sharing: The Troubling Effects of Aggregating Minimum Statutory Damages for Copyright Infringement

handle is hein.journals/tlr83 and id is 543 raw text is: Notes
Grossly Excessive Penalties in the Battle Against
Illegal File-Sharing: The Troubling Effects of
Aggregating Minimum Statutory Damages for
Copyright Infringement*
I.   Introduction
Imagine that you are a file-sharer. You download copyrighted songs to
your computer for your personal use. You think of it like recording songs
from the radio. Now imagine that a plaintiff sues you for downloading the
one song to which she holds a registered copyright. Suppose the plaintiff
knows that her monetary loss caused by your conduct is exactly one dollar.'
At trial, this plaintiff can elect to recover statutory damages for copyright
infringement and thereby receive a guaranteed $750 in damages,2 all but one
dollar of which would be noncompensatory in nature. The noncompensatory
damages, those which exceed the loss that you caused, serve as a
punishment,3 and there are several valid reasons for their imposition: they
admonish you for your misconduct, they deter future infringement by
increasing its cost, and they add an incentive for the copyright owner to sue.
Now suppose that you have been a file-sharer for the past few years,
accumulating some four thousand songs on your computer, all copyrighted
and registered by the plaintiff. When the minimum statutory damage award
of $750 is aggregated across every copyright that you have infringed, you are
* I am grateful to Professors Oren Bracha, Karen Engle, Douglas Laycock, R. Anthony Reese,
Eugene Volokh (and his website, lawtopic.org), and Ernie Young for their insightful comments and
helpful suggestions. I also owe thanks to the Texas Law Review editors for their fine editorial
contributions. My deepest gratitude lies with my wife Emily, who was the first to lay eyes on this
piece, for her extraordinary forbearance and support.
1. This figure is used for illustrative purposes only; it is likely that the direct harm to copyright
owners from the sharing of a copyrighted music file is more than just one dollar. On the other hand,
a recent study by professors at the Harvard Business School and the University of North Carolina
concludes that file-sharing has no statistically significant effect on purchases of the average music
album and that it increases the sales of hot albums by one CD sale for every 150 downloads.
Felix Oberholzer & Koleman Strumpf, The Effect of File-Sharing on Record Sales: An Empirical
Analysis 23-24 (Mar. 2004), at http://www.unc.edu/-cigar/papers/FileSharingMarch2004.pdf.
2. 17 U.S.C. § 504(c)(1) (2000) (providing for a $750 minimum statutory damage award per
copyrighted work infringed); see id. § 412 (forbidding the award of copyright infringement statutory
damages for unpublished works that were unregistered at the time of infringement and for then-
published works that were not registered within three months of their first publication). This
conclusion assumes that your infringement did not qualify as innocent, a possibility further
discussed below. See infra notes 54-60 and accompanying text.
3. See Cass County Music Co. v. C.H.L.R., Inc., 88 F.3d 635, 643 (8th Cir. 1996) (noting that
copyright's statutory damages comprise remuneration for injury but also serve as a penalty).

What Is HeinOnline?

HeinOnline is a subscription-based resource containing thousands of academic and legal journals from inception; complete coverage of government documents such as U.S. Statutes at Large, U.S. Code, Federal Register, Code of Federal Regulations, U.S. Reports, and much more. Documents are image-based, fully searchable PDFs with the authority of print combined with the accessibility of a user-friendly and powerful database. For more information, request a quote or trial for your organization below.

Short-term subscription options include 24 hours, 48 hours, or 1 week to HeinOnline.

Contact us for annual subscription options:

Already a HeinOnline Subscriber?

profiles profiles most