GRIFFIN COPYRIGHT MBU 2520 FALL 2019 chapter 12

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

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
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
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
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
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
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
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
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
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
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
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

.
14

GRIFFIN COPYRIGHT MBU 2520 FALL 2019 chapter 12

Recommended

Recommended

More Related Content

What's hot

What's hot (20)

Similar to GRIFFIN COPYRIGHT MBU 2520 FALL 2019 chapter 12

Similar to GRIFFIN COPYRIGHT MBU 2520 FALL 2019 chapter 12 (10)

More from Eric Griffin

More from Eric Griffin (19)

Recently uploaded

Recently uploaded (20)

GRIFFIN COPYRIGHT MBU 2520 FALL 2019 chapter 12