On Tue, 30 Jul 1996, Vicki Richman wrote:
> Terry Carroll has written:
>
> > Well, no. Registration allows you to collect at least $500 and at most
> > $100,000 as the judge deems is just. In fact the ceiling is usually
> > $20,000, unless you can show that the infringement was willful.
>
> Thanks for that correction. Yes, $100K is the max for each
> violation, not the minimum, as I had suggested. I meant that
> a plaintiff could demonstrate multiple infringements,
> claiming a judgment for each.
If you find multiple parties each infringing your FAQ separately, sure, you
could bring one suit against each and claim dmages for each. But the $20,000
cap is per work, not per copy or per infringement. So if an infringer, for
example, sets up four web sites, all with your FAQ, and you sue him for
infringing your registered copyright, you have a max collection of $20,000
statutory damages, regardless of whether the FAQ was put on one web site or
four, or 100. (I'm using the $20,000 figure as a cap -- the $100,000 is only
available if the plaintiff sustains the burden of showing the defendant's
state of mind as to willful infringement, and in most cases, that's wishful
thinking.)
> > As a practical matter, most statutory
> > awards will be in the neighborhood of a good estimate of the actual
> > damages (i.e., your loss or the infringer's profit), unless punitive
> > damages are deemed appropriate.
>
> If that's so, what is the point of registering? A plaintiff
> may collect actual damages without registration.
The hassle of the burden of proof of showing actual damages is significantly
lessened. And it allows the judge to spank the bad guy without an exact
showing of dollar amounts. And it allows the case to go to the judge instead
of a jury, if the plaintiff so desires.
> A FAQ
> author suffers virtually no provable financial loss from
> infringement. Without statutory damages, the plaintiff can
> gain hardly more than a non-monetary judgment, like an
> injunction against the infringer.
Copyright, like most civil causes of action, is not intended to reward the
plaintiff for being harmed. It's only intended to put the plaintiff in as
good a position as if he or she had not been harmed. Sure, if you suffer no
significant loss, you won't get a significant award. That's the point: the
award is supposed to reflect the damage.
> > As a final kicker, neither statutory damages nor attorney's fees are
> > available to the copyright owner if the work was not registered before
> > the complained-of infringement occurred. So it's too late for Lani to
> > take advantage of this.
>
> Well, there is a grace period of a month,
I think you're thinking of the three-month period, and that's based off of
publication date, not infringement date. I didn't want to get into the hairy
details, but you can get stautory damages and attorney's fees if (a) the work
is unpublished and registered prior to the infringement; or (b) the work was
published, and was either registered prior to the infringement, or both the
infringement and the registration occurred within three months of first
publication. So basically, if you found out about an infringement today,
that three month grace period only helps you if your first publication was
May 1 or later. And if it was May 1, you'd better get that registration
application into the Copyright Office _today._ (The effective date of
registration is the date the materials arrive in the Copyright Office.)
> but the courts
> prefer that registration occur before infringement was even
> contemplated. The plaintiff should not appear to have
> registered for the purpose of bringing suit. Registration
> should have occurred for its own sake, without consideration
> of a court action.
Actually, it doesn't matter, as long as you meet the statutory
requirement. It's quite common to see copyright suits where the
registration is made for no other purpose than for litigation. In fact,
since registration is a requirement for litigation for most works (even
apart from the statutory damages issue), it's a standard practice. I
typically will see incoming complaints where the work is not yet
registered, but the application for registration is attached. When the
registration issues, the plaintiff amends the complaint to indicate that
fact.
> I support reform of Copyright Law to repeal Sections 411(a)
> and 412, which reward registration of unpublished documents
> with statutory damages for infringement. The purpose of
> those sections was to encourage contributions to the
> manuscript collection of the Library of Congress.
I support 411(a). It requires registration as a prerequisite for bringing
suit. It has nothing to do with deposits to the Library of Congress -- the
deposit you send in with an unpublished work goes in the Copyright Office
file, not in the LoC. That's why two copies are sent with published works --
a second copy is needed for the LoC. The purpose of 411(a) is two-fold: 1)
Let the Copyright Office examine the work to determine whether it's
copyrightable, to simplify the arguments in court; and 2) make a public
record of any work whose copyright is being sued on.
As to 412, I'd support dropping 412(1), which limits remedies for
unpublished works, but would maintain 412(2), which limits remedies for
published works that were not registered.
> In fact it does not work. The owners of truly valuable
> documents do not register them, as the statutory damages are
> trivial compared to retaining physical control of the
> paper.
Well, if the work isn't published, a copy doesn't have to be donated to the
Library of Congress in any event. If the work is published, a copy has to be
donated whether you register or not. LoC deposit is not a condition of
copyright or of registration; it's a duty that arises on publication.
Registration is just a convenient vehicle for handling both at once.
-- Terry Carroll | "In a professional sports league game played in the Santa Clara, CA | United States, the head referee ... shall ... in the carroll@tjc.com | event of conflicting calls, review instant replay to Modell delenda est | determine the correct call." - House Bill H.R. 3096
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