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Copyright Infringers May Get Relief From Huge Monetary Demands

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By Jonathan R. Tung, Esq. on January 29, 2016 3:06 PM

The Internet Policy Task Force from the US Dept. of Commerce made a recommendation that Congress should alter the Copyright Act in such a way to reduce overall money damages in copyright disputes.

The recommendation is not to do away with the $150,000 per violation rule; however, the changes will generally make it much more difficult to ever get that number.

The White Paper

Every self-respecting organization has to have a white-paper, right? In the IPTF's white-paper concerning the Copyright Act, the agency recommends that Congress consider the defendant's financial situation and also the actual value of the works infringed. In total, juries would now get to consider nine factors before making a final decision as to the proper damages.

Why Is This Significant?

The way the Act is authored, a cap exists currently for damages at $150,000 per actual copyright violation. But this $150,000 number is the cap amount per "instance" of violation, not a body or transaction of repeated violations. Because of that, just a few violations of a protected copyright can lead to numbers that climb into the stratosphere. Still, it could be the case that fears of such damage findings are a little overblown as such numbers are not routinely awarded.

Litigation Trolls

The task force also suggested that the addition of the "actual value of copyright" factor would serve to discourage would-be copyright trolls from suing all violators for everything they have since the jury could now consider the actual value of the copyright. A fresh copyright with very little public recognition would not justify a $150,000 reward for violation, for example.

Small Claims Tribunal and the "Innocent Infringer"

The paper further recommends a "small claims tribunal" in which participants could voluntarily participate. This tribunal would have jurisdiction over those infringement cases of relatively low economic value, with damages capped at $15,000 per violation, and $30,000 for all damages related to a single work.

"Innocent Infringers" will also get more leeway from the Department of Commerce if the recommendations are adopted. Currently, persons who allege good-faith infringement are only dinged $200 but cannot use that defense if the image is marked with a copyright symbol. If the Task Force reforms get passed by Congress, this would not be an automatic bar to the defense.

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