Statutory Damages Under the Copyright Act:
In this Article, we are interested in understanding what courts do in copyright infringement cases when awarding statutory damages, and whether, given the absence of statutory direction, there are any discernable patterns in those statutory damages awards. To this end, we constructed a new dataset of copyright cases in which statutory damages were awarded by a jury or a judge on the merits from January 1, 2009, through May 31, 2020 (n=277 awards). In addition to recording amounts awarded by the court and the number of works infringed in each case, we collected data on the type of works that had been infringed, the level of defendant culpability, whether the award was made by a judge or jury, any lost licensing fee evidence presented by the plaintiff, and any damages requests made by the plaintiff.
Our findings strongly suggest that in copyright infringement cases in which information is available that permits the approximation of actual damages, courts tend to award statutory damages that are guided by, and are based on a reasonable multiple of, those approximated actual damages. Given the systemic concerns raised by the very wide possible range of statutory damages awards that the Copyright Act makes available, we argue that courts should encourage parties to offer evidence from which actual damages can be approximated, even if only roughly. Doing so is likely to result in a salutary shift that will both make statutory damages more predictable and better align those awards with the compensation, deterrence, and in appropriate cases, punishment goals of the Copyright Act’s remedial regime.