Monday, August 20, 2007

Several Liability and Statutory Damages

Section 504(c) of the 1976 Act contains a deliberate departure from the 1909 Act's handling of awards of statutory damages. Under the 1909 Act, awards could be made per infringing copy. Under the 1976 Act, by contract, the general rule is one award per work, reflected in this statutory language:

(1) Except as provided by clause (2) of this subsection, the copyright owner may elect, at any time before final judgment is rendered, to recover, instead of actual damages and profits, an award of statutory damages for all infringements involved in the action, with respect to any one work, for which any one infringer is liable individually, or for which any two or more infringers are liable jointly and severally, in a sum of not less than $750 or more than $30,000 as the court considers just. For the purposes of this subsection, all the parts of a compilation or derivative work constitute one work.
But the one-work-one-award general rule is just that, a general rule. The statutory permits multiple awards for inringement of the same work by defendants who are severally liable. In Section 22:196 of my treatise, I have these comments:

Whether there is joint or only several liability for statutory damages is determined by general copyright principles. Where two or more defendants, acting in concert, violate the same exclusive right(s), they are jointly and severally liable. Under such facts, no matter the number of such defendants, the copyright owner may recover only one award of statutory damages for violation of that one work. By contrast, where multiple defendants infringe the same work, but by violating different rights, there is several liability, and thus separate awards. This result is obtained from the statutory language limiting the copyright owner to one award: (1) “with respect to any one work, for which any one infringer is liable individually,” or (2) “for which any two or more infringers are liable jointly and severally.” These two categories are, though, duplicative: if the infringement is not one “for which any two or more infringers are liable jointly and severally,” obviously each defendant is liable individually (the first category).
Some examples may prove helpful:
• Defendants A&B, acting in concert, violate the reproduction right. Only one award is permissible, for which A&B are jointly and severally liable.
• Defendants A&B, not acting in concert (as where Student A, on the West Coast, downloads Song C, and Student B, on the East Coast, also downloads Song C), violate the reproduction right. Two awards are permitted. A&B are severally liable.
• Defendants A, B, & C, acting in concert, violate the reproduction right. Defendant C, acting alone, also violates the public performance right. There is one award for violation of the reproduction right, for which A, B, & C are jointly and severally liable. There is a second award for violation of the public performance right, for which C is severally liable.
• Defendants A, B, & C, acting in concert to put on a play which is infringing, violate separate rights. A alone violates the reproduction right. B alone violates the distribution right. C alone violates the public performance right. There are three awards, for which each defendant is severally liable.

The final example was recently questioned by a friend, who believed it lacked support. I think the statutory language is support enough: the one-award-per-one-work general rule applies only to individuals acting alone and joint tortfeasors who are jointly and severally liable: it doesn't speak to situations where joint tortfeasors are severally liable, meaning to me, that the one award rule doesn't apply in such situations. But here is the relevant discussion from the House report.

Where the infringements of one work were committed by a single infringer acting individually, a single award of statutory damages should be made. Similarly, where the work was infringed by two or more joint tortfeasors, the bill would make them liable for an amount in the $250 to $10,000 range. However, where separate infringements for whom two or more defendants are not jointly liable are joined in the same action, separate awards of statutory damages would be appropriate.

H.R. Rep. No. 1476, 94th Cong., 2d Sess. 162 (1976).

It is, I think, the final sentence that supports the example in question.

2 comments:

joshua wattles said...

It's the "acting in concert" part, suggesting joint liability as to each stage of use, that throws the example off. But since its a hypothetical, there are hypothetical facts that could be consistent with those stated sufficient to get the result you suggest.

William Patry said...

Josh, excellent, point, I'll change it in the next update