Punitive Damages in Copyright Infringement Actions under the U.S. Copyright Act

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The U.S. Copyright Act does not provide for punitive damages per se to be awarded in cases of copyright infringement; however, in recent years a debate has arisen as to whether punitive damages may be awarded in addition to actual damages and profits under the Copyright Act. Under the Act, a plaintiff may elect either actual damages and profits or statutory damages; statutory damages may be enhanced in cases of willful infringements. The statute is silent with regard to punitive damages but some experts have suggested that the silence does not necessarily mean that punitive damages are completely precluded by the Act.

In the U.S. District Court for the Southern District of New York (SDNY), a few decisions issued in recent years have suggested that the option of punitive damages under the Act might not be completely foreclosed. A brief opinion by Stanton J. in Viacom Intern Inc v. Youtube Inc. explains the origin of what appears to be a short detour taken by some of the judges in the SDNY in the early 2000s with respect to the question of punitive damages. A study of the detour is instructive in analyzing the structure of damages under the Copyright Act, which is set in a manner that penalizes all copyright owners who do not timely register their works with the U.S. Copyright Office. The advantage given to those who register may surprise some owners, particularly non-U.S. owners who are likely to expect registration to be unnecessary after the United States became a party to and took steps to implement the Berne Convention for the Protection of Literary and Artistic Works, which prohibits formalities in art.5(2).

Publication Citation

31 Eur. Intell. Prop. L. Rev. 108 (2009).

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