MESSAGE
| DATE | 2026-01-20 |
| FROM | Ruben Safir
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| SUBJECT | Subject: [Hangout - NYLXS] It is a dangerous world: Statutory Damages: The
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Statutory Damages: The Fuel of Copyright-based Censorship
We're taking part in Copyright Week, a series of actions and discussions
supporting key principles that should guide copyright policy. Every day
this week, various groups are taking on different elements of copyright
law and policy, and addressing what's at stake, and what we need to do
to make sure that copyright promotes creativity and innovation.
Imagine every post online came with a bounty of up to $150,000 paid to
anyone who finds it violates opaque government rules—all out of the
pocket of the platform. Smaller sites could be snuffed out, and big
platforms would avoid crippling liability by aggressively blocking,
taking down, and penalizing speech that even possibly violates these
rules. In turn, users would self-censor, and opportunists would turn
accusations into a profitable business.
This dystopia isn’t a fantasy, it’s close to how U.S. copyright’s broken
statutory damages regime actually works.
Copyright includes "statutory damages,” which means letting a jury
decide how big of a penalty the defendant will have to pay—anywhere from
$200 to $150,000 per work—without the jury necessarily seeing any
evidence of actual financial losses or illicit profits. In fact, the law
gives judges and juries almost no guidelines on how to set damages. This
is a huge problem for online speech.
One way or another, everyone builds on the speech of others when
expressing themselves online: quoting posts, reposting memes, sharing
images from the news. For some users, re-use is central to their online
expression: parodists, journalists, researchers, and artists use others’
words, sounds, and images as part of making something new every day.
Both these users and the online platforms they rely on risk
unpredictable, potentially devastating penalties if a copyright holder
objects to some re-use and a court disagrees with the user’s
well-intentioned efforts.
On Copyright Week, we like to talk about ways to improve copyright law.
One of the most important would be to fix U.S. copyright’s broken
statutory damages regime. In other areas of civil law, the courts have
limited jury-awarded punitive damages so that they can’t be far higher
than the amount of harm caused. Extremely large jury awards for fraud,
for example, have been found to offend the Constitution’s Due Process
Clause. But somehow, that’s not the case in copyright—some courts have
ruled that Congress can set damages that are potentially hundreds of
times greater than actual harm.
Massive, unpredictable damages awards for copyright infringement, such
as a $222,000 penalty for sharing 24 music tracks online, are the fuel
that drives overzealous or downright abusive takedowns of creative
material from online platforms. Capricious and error-prone copyright
enforcement bots, like YouTube’s Content ID, were created in part to
avoid the threat of massive statutory damages against the platform.
Those same damages create an ever-present bias in favor of major
rightsholders and against innocent users in the platforms’ enforcement
decisions. And they stop platforms from addressing the serious problems
of careless and downright abusive copyright takedowns.
By turning litigation into a game of financial Russian roulette,
statutory damages also discourage artistic and technological
experimentation at the boundaries of fair use. None but the largest
corporations can risk ruinous damages if a well-intentioned fair use
crosses the fuzzy line into infringement.
“But wait”, you might say, “don’t legal protections like fair use and
the safe harbors of the Digital Millennium Copyright Act protect users
and platforms?” They do—but the threat of statutory damages makes that
protection brittle. Fair use allows for many important re-uses of
copyrighted works without permission. But fair use is heavily dependent
on circumstances and can sometimes be difficult to predict when
copyright is applied to new uses. Even well-intentioned and
well-resourced users avoid experimenting at the boundaries of fair use
when the cost of a court disagreeing is so high and unpredictable.
Many reforms are possible. Congress could limit statutory damages to a
multiple of actual harm. That would bring U.S. copyright in line with
other countries, and with other civil laws like patent and antitrust.
Congress could also make statutory damages unavailable in cases where
the defendant has a good-faith claim of fair use, which would encourage
creative experimentation. Fixing fair use would make many of the other
problems in copyright law more easily solvable, and create a fairer
system for creators and users alike.
--
So many immigrant groups have swept through our town
that Brooklyn, like Atlantis, reaches mythological
proportions in the mind of the world - RI Safir 1998
http://www.mrbrklyn.com
DRM is THEFT - We are the STAKEHOLDERS - RI Safir 2002
http://www.nylxs.com - Leadership Development in Free Software
http://www.brooklyn-living.com
Being so tracked is for FARM ANIMALS and extermination camps,
but incompatible with living as a free human being. -RI Safir 2013
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