ABSTRACT
This Article critically examines copyright’s scheme of statutory damages. It argues that the statutory framework and its implementation by the courts do not find adequate support in any of the rationales commonly invoked in the case law, including evidentiary difficulties, retribution, or deterrence. The paper then reviews an alternative rationale: the economic argument for supracompensatory damages as a mechanism for achieving optimal deterrence in the presence of substantial enforcement cost. We find that with respect to a subset of the cases where large multiplayer damages are imposed on individual infringers, the optimal deterrence rationale suffers from two grave defects, both of which are traceable to its welfarist underpinnings. One is ignoring the distributive inequity imposed on the few caught infringers who pay supracompensatory damages grossly disproportionate to their equitable share of the social burden of supporting the copyright system. The other is aggregating on a single scale qualitatively distinct human interests, of different degrees of urgency, thereby risking the swamping of fundamental human interests of a few by aggregates of modest – or even trivial – interest fragments of many. The paper concludes by briefly suggesting directions for amending these defects.
Syed, Talha and Bracha, Oren, The Wrongs of Copyright’s Statutory Damages (October 23, 2021). 98 Texas Law Review volume 98, 1219, 2020.
First posted 2021-10-26 09:00:31
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