pikine's Journal: Copyright reform: statutory damage

This article is part of a series that describe some ideas for reforming current copyright law. The approach I'm taking is ad-hoc. A specific problem is listed, and a solution is proposed, followed by the rationale.

When a copyright infringement case is brought to court, if the case holds, then the plaintiff may be awarded statutory damage, which serves as a punitive deterrent for infringement. The amount is not based on actual damage. Because of this, the RIAA aggressively engages in lawsuit with people who appear to distribute copyrighted work over peer-to-peer network even when the case may be without merit. Individual defendants lacking the legal resource are forced to settle, and to settle based on the amount of statutory damages which is disproportional to the actual damage caused by the individual.

The proposed reform is to reduce or eliminate statutory damage. The plaintiff is still able to claim actual damage, but it could be contested by the defendant in court.

With statutory damage, the plaintiff does not have to prove the actual damage, so statutory damage makes it more likely to either (1) bring every copyright infringement case to court, no matter how minimal the actual damage is, or (2) increase the amount of out-of-court settlement. By reducing statutory damage, it also reduces incentive for legal powerhouse like RIAA to go after individuals.

However, copyright owners are still protected against organized, large scale copyright infringement, in which case the actual damage is easier to prove.

The current statutory damage of $30,000 (upto $150,000 in the case of willful infringement) should be reduced to less than $3,000 (upto $15,000), i.e. reducing at least by a factor of ten. The rationale is that the statutory damage should be the threshold to distinguish cases that warrant further discovery of damages.