GRIFFIN COPYRIGHT MBU 2520 FALL 2019 chapter 12

1. MBU 2520 Spring 2018 - Eric M. Griffin
REMEDIES FOR
INFRINGEMENT
1

2. REMEDIES for INFRINGEMENT MBU 2520 Spring 2018 - Eric M. Griffin
.
2
COERCIVE REMEDIES
Designed to prevent further infringement
Compensatory remedies
Designed to compensate the © owner for
losses
Criminal Remedies
Designed to punish and deter infringement

3. REMEDIES for INFRINGEMENT MBU 2520 Spring 2018 - Eric M. Griffin
.
3
COERCIVE REMEDIES
INJUNCTION
* A court order telling someone to do or to stop doing
something
* Courts have authority under 502(a) to grant injunctions
* 1991 Biz Markie v WB case – had to recall the album!
* May be temporary or final. Temp can require a bond.
* Court looks at Irreparable Harm potential—generally
assumed in copyright infringement
* Violating injunction = subject to fines / imprisonment

4. REMEDIES for INFRINGEMENT MBU 2520 Spring 2018 - Eric M. Griffin
.
4
COERCIVE REMEDIES
IMPOUNDMENT
* A court orders the alleged infringing articles – as well as
equipment – to be collected and held until final judgment
* Courts have authority under 503(a)
DESTRUCTION
* Upon a finding of guilt in an infringement suit, court may
order the destruction or seizure of the infringing articles
* Courts have authority under 503(b)
* May also order that articles be sold, given away or delivered
to Plaintiff

5. REMEDIES for INFRINGEMENT MBU 2520 Spring 2018 - Eric M. Griffin
.
5
COMPENSATORY REMEDIES
Actual Damages and Profits
 Must prove: amount of money lost b/c of infringement (what the plaintiff
would have made BUT FOR the infringement base on FMV)
 Varies depending upon whether single or album. A single is often used to
promote albums sales… so, hard to value. (Isley Bros v Bolton).
 Can be difficult to prove (TV commercial—what the normal rate is?)
 Sometimes impossible (illegal downloads—may not know # of
reproductions)
 Sometimes gross profits and indirect profits (Hotel/Casino case)

6. REMEDIES for INFRINGEMENT MBU 2520 Spring 2018 - Eric M. Griffin
.
6
COMPENSATORY REMEDIES
Statutory Damages
* Because actual damages can be hard to detrmine, 504(c)
allows a copyright owner to elect to receive monetary damages
within a specified range (Statutory Damages) INSTEAD OF actual
damages and profits
* General Range: $750 to $30,000
* If WILLFUL: up to $150,000
* If Innocent: as low as $200 (or nothing if defendant
REASONABLY BELIEVED the use was a fair use)
* Unsympathetic Defendants receive higher Damages.
* Based PER WORK infringed, no matter now many times.
* Thomas and Tennebaum cases (huge award for 24 songs & 30 songs)

7. REMEDIES for INFRINGEMENT MBU 2520 Spring 2018 - Eric M. Griffin
.
7
COMPENSATORY REMEDIES
Costs and Attorneys’ Fees
 Section 505 allows for awarding REASONABLE attorneys’ fees, as well as
court costs and other fees, to the prevailing party (e.g.- expert witness fees,
filing fees, etc.)
 Purpose for Plaintiff: deter potential infringers and encourage owners to
bring suit even when actual or statutory damages won’t cover cost of suit.
 Purpose for Defendant: Encourage defense of claims believed to be invalid
rather than settling. Discourage owners from filing frivolous claims.

8. REMEDIES for INFRINGEMENT MBU 2520 Spring 2018 - Eric M. Griffin
.
8
COMPENSATORY REMEDIES
Costs and Attorneys’ Fees
 Discretion of the courts to award attorneys’ fees and profits—looks at
frivolousness, motivation, good/bad faith, compensation, deterrence
 Must be same basis for Plaintiffs as Defendants
 What is “reasonable”? Time and labor needed. Standard fees for area and
industry. Monetary damages involved. Experience and reputation of attorney


9. REMEDIES for INFRINGEMENT MBU 2520 Spring 2018 - Eric M. Griffin
.
9
CRIMINAL COPYRIGHT INFRINGEMENT
1909 did NOT protect sound recordings with criminal sanctions.
* UNDER 1976 COPYRIGHT ACT
• If WILLFUL and for FINANCIAL GAIN = may be subject to criminal copyright infringement.
Criminal prosecutions are RARE.
Section 506(a):
 Misdemeanor for infringing any of the Section 106 rights
 Punishable by up to one year prison or up to $100,000 – or both
 Felony if infringing reproduction or distribution right
 At least 10 copies, value of $2,500 or more, within a 180 day period
 Felony infringement punishable by up to five years prison or up to $250,000 – or both
 IF repeat offender, up to 10 years prison
506 (c) False info on copyright notice with fraudulent intent or remove notice
• Punishable by fine up to $2,500

10. REMEDIES for INFRINGEMENT MBU 2520 Spring 2018 - Eric M. Griffin
.
10
CRIMINAL COPYRIGHT INFRINGEMENT
NO ELECTRONIC THEFT ACT ( NET ACT) (1997 Amendment to Act)
• Expanded criminal infringement to situations without direct financial motive.
Congress said that abusing © was like any other abuse of property of another
and need not be for financial gain to be criminal.
• US v LaMacchia (bulletin board case where defendant encourages piracy)
Because he didn’t profit, no liability – Led to the NET ACT
• Criminal penalties for the “reproduction and distribution, including by electronic
means, during any 180 day period,” of one or more copyrighted works that have
a total retail value more than $1,000.
• If 10 or more copies or retail value or $2,500
• Punishable by up to 3 yrs prison / up to $250,000 – or both

11. REMEDIES for INFRINGEMENT MBU 2520 Spring 2018 - Eric M. Griffin
.
11
PRE RELEASE PIRACY
FAMILY ENTERTAINMENT AND COPYRIGHT ACT (2005 Amendment to Act)
• Expanded criminal infringement to situations where a work is made available to
the public prior to release
• Punishable by up to 3 yrs prison; if financial gain, up to 5 yrs prison; if
repeat offender / financial gain
• FECA Case (Ryan Adams CD 2005 – EX 12.9 pg 233)

12. REMEDIES for INFRINGEMENT MBU 2520 Spring 2018 - Eric M. Griffin
.
12
DIGITAL MILLENNIUM COPYRIGHT ACT
(1998)
Increased penalties for criminal copyright infringement for “circumventing
copyright protection systems and tampering with copyright management
information.”
• If WILLFUL or COMMERCIAL GAIN
• Punishable by up to 5 yrs prison / up to $500,000 – or both
• Repeat offenders: up to 10 yrs prison / up to $1,000,000 – or both

13. REMEDIES for INFRINGEMENT MBU 2520 Spring 2018 - Eric M. Griffin
.
13

14. REMEDIES for INFRINGEMENT MBU 2520 Spring 2018 - Eric M. Griffin
.
14