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Calculating damages and remedies in a copyright infringement case

Feb 7th, 2015 | By | Category: Copyright Litigation

Legal risks of a Copyright lawsuit – Remedies a Plaintiff may seek against an alleged infringer or software pirate!

Potential damages in copyright piracy case

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Introduction

This blog discusses what “remedies” a Plaintiff might seek against your company or against officers and directors of a company if there is a copyright lawsuit filed alleging infringement of a book, photo, art work, software, film, video, podcast, or other types of creative intellectual property.

17 U.S.C. 504 explained

The federal code section that discusses monetary damages available in a federal copyright lawsuit is 17 U.S. Code § 504.  This section states:

Remedies for infringement: Damages and profits.

Except as otherwise provided by this title, an infringer of copyright is liable for either:

(1) the copyright owner’s actual damages and any additional profits of the infringer, as provided by subsection (b) (see below);

or

(2) statutory damages, as provided by subsection (c).


(b) Actual Damages and Profits.— The copyright owner is entitled to recover the actual damages suffered by him or her as a result of the infringement, and any profits of the infringer that are attributable to the infringement and are not taken into account in computing the actual damages. In establishing the infringer’s profits, the copyright owner is required to present proof only of the infringer’s gross revenue, and the infringer is required to prove his or her deductible expenses and the elements of profit attributable to factors other than the copyrighted work.


(c) Statutory Damages — (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.


(2) In a case where the copyright owner sustains the burden of proving, and the court finds, that infringement was committed willfully, the court in its discretion may increase the award of statutory damages to a sum of not more than $150,000. In a case where the infringer sustains the burden of proving, and the court finds, that such infringer was not aware and had no reason to believe that his or her acts constituted an infringement of copyright, the court in its discretion may reduce the award of statutory damages to a sum of not less than $200. The court shall remit statutory damages in any case where an infringer believed and had reasonable grounds for believing that his or her use of the copyrighted work was a fair use under section 107, if the infringer was: (i) an employee or agent of a nonprofit educational institution, library, or archives acting within the scope of his or her employment who, or such institution, library, or archives itself, which infringed by reproducing the work in copies or phonorecords; or (ii) a public broadcasting entity which or a person who, as a regular part of the nonprofit activities of a public broadcasting entity (as defined in section 118 (f)) infringed by performing a published nondramatic literary work or by reproducing a transmission program embodying a performance of such a work.

(3) (A) In a case of infringement, it shall be a rebuttable presumption that the infringement was committed willfully for purposes of determining relief if the violator, or a person acting in concert with the violator, knowingly provided or knowingly caused to be provided materially false contact information to a domain name registrar, domain name registry, or other domain name registration authority in registering, maintaining, or renewing a domain name used in connection with the infringement.

(B) Nothing in this paragraph limits what may be considered willful infringement under this subsection.

(C) For purposes of this paragraph, the term “domain name” has the meaning given that term in section 45 of the Act entitled “An Act to provide for the registration and protection of trademarks used in commerce, to carry out the provisions of certain international conventions, and for other purposes” approved July 5, 1946 (commonly referred to as the “Trademark Act of 1946”; 15 U.S.C. 1127).


(d) Additional Damages in Certain Cases.— In any case in which the court finds that a defendant proprietor of an establishment who claims as a defense that its activities were exempt under section 110 (5) did not have reasonable grounds to believe that its use of a copyrighted work was exempt under such section, the plaintiff shall be entitled to, in addition to any award of damages under this section, an additional award of two times the amount of the license fee that the proprietor of the establishment concerned should have paid the plaintiff for such use during the preceding period of up to 3 years.

Calculating damages in a software licensing audit / shortage case

Many people want to know how much a software licensing shortage will cost their firm.  There is no easy answer to this question despite some law firms contending there is a “calculator” that can easily answer the question.  In general, you can expect 2-4 times MSRP, a “pursuit fee,” support and maintenance fees, and possibly a claim for more that this if willful copyright infringement is shows (this is normally the case where a company has multiple installations of Microsoft, Adobe, Autodesk, Corel, Bentley, IBM, BEA, Corel, Attachmate, Rosetta Stone or other software installed WITHOUT HAVING ANY RECEIPTS or proofs of purchase.  This can evidence an intent to “steal” software, and to accuse the company or business of engaging in “software piracy.”  Our firm can help combat and defend these charges from the Business Software Alliance (“BSA”), SIIA, and others.  If you have received a self-audit letter from a software company, its lawyers, or from KPMG, Price Waterhouse Copper or Deloitte & Touche, it is especially important to contact our firm before making statements and exchanging information with a company that could seek to severely cripple your company with a large financial damage award, which may include threatening officers and directors with personal liability for the copyright infringement.

FOR MORE INFORMATION: To learn more about software license audits click this link.

Contact a copyright infringement law firm

The best thing to do when you are a potential Plaintiff or Defendant in a copyright infringement case is to contact an intellectual property lawyer.  We can help discuss your legal rights, remedies, calculate your potential exposure and help with infringement of books, videos, films, blogs, artwork, photographs, music, and other forms of creative expression.  We will not be beat on price or quality of services so contact one of our copyright lawyers today to discuss your case in confidence. We can be reached at (877) 276-5084 or fill out the contact form below (making sure to leave your best phone number to reach you), and we will reach out to discuss the case with you, normally with return call within one hour of receiving your email.  We look forward to working with you.

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We are a business and civil litigation firm with a focus on copyright infringement cases involving illegal movie downloads (torrent cases such as London Has Fallen and Malibu Media defense), software audits (ex. Microsoft audits, SPLA, Autodesk audit notification letter, Siemens PLM defense, SIIA, Adobe and Business Software Alliance defense) and other software vendors threatening piracy and infringement. We also handle cases involving internet law, anti-SLAPP, media law, right of publicity, trademarks & domain name infringement, and we have a niche practice area handling California BRE licensing disputes, accusations, subpoena response, statement of issues and investigations. We have offices in San Francisco, Beverly Hills, Newport Beach, San Diego & Phoenix, Arizona and accept federal copyright and trademark cases nationwide. All content on our website is general legal information only and not a substitute for legal advice, and should not be relied upon. Decisions to hire counsel should not be based on advertising alone. Blogs, videos and podcasts are authored by Steve Vondran, Esq. unless otherwise noted. We can be reached at (877) 276-5084.

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