Private Law Theory

Abstract
… In this Article, I argue that all of these holdings are wrong. Specifically, I argue that overhead should reduce the defendant’s profit calculation only when the defendant can prove that, but for the infringement, it would have utilized the assets represented by the overhead in some other revenue-generating fashion. Although there may be a rough correlation between this analysis and an analysis of the defendant’s willfulness, the focus on willfulness emphasizes the wrong consideration, resulting in much of the confusion that permeates the current law. Part of this confusion stems from a disagreement regarding the purpose of the disgorgement remedy. Some argue that disgorgement is coercive, others that it is punitive, and still others that it is compelled by notions of corrective justice. I contend in this Article that corrective justice best accounts for the features of copyright disgorgement …

Layne S Keele, Copyright Infringement’s Blurred Lines: Allocating Overhead in the Disgorgement of Profits 2017 Brigham Young University Law Review 1059 (2018).

First posted 2018-03-29 12:07:18