Does the absence of damages moot a Copyright Infringement Claim?
Fred the Red Shirt
has made and distributed unauthorized copies of material
the copyright to which I own.
Must I allege monetary damages to sue, or can I sure purely
for injunctive relief such as destroying the infringing copies?
Cy Pres
IANAL.
Note that none of this is legal advice. It is merely what I've
gleaned from casual reading of previous cases. For real legal advice,
retain counsel of your own.
While I don't mean to argue, it's possible you're not asking the right
question here. You don't mention what you hope to achieve. You also
don't note whether the infringement is online, in which case the DMCA
is your best option to stop the direct source of infringement.
However, assuming your case actually has merit, you are entitled to
such injunctive relief. Further, you are also entitled to monetary
damages. You do not need to prove monetary damages. The copyright
law provides for statutory damages, which can often vastly exceed the
amount of monetary damages, ranging from $750 to $30,000 per work. If
WILLFUL infringement is shown, the damages can go as high as $150,000,
without even demonstrating monetary damages.
http://www.law.cornell.edu/uscode/html/uscode17/usc_sec_17_00000504----000-.html
However, note that one important prerequisite to obtaining statutory
damages is that you filed copyright registration for the work PRIOR to
infringement.
http://www.law.cornell.edu/uscode/html/uscode17/usc_sec_17_00000412----000-.html
There is nothing per se which prevents you from suing solely for
injunctive relief without suing for monetary or statutory damages.
However, copyright litigation is expensive, complex, and
time-consuming. Since, generally, you have to pay your own attorney's
fees regardless of the outcome, you'd have to calculate how much this
issue is worth to you.
Personally, if I were in a situation like what you describe, though
you don't go into any details, my decision would largely be based on
whether or not I felt that I was likely to get my attorney's fees paid
(a highly technical issue and see Fogerty v. Fantasy, Inc., 510 U.S.
517 (1994) and similar subsequent cases for rules on how this
happens), or worse, whether I faced the prospect of having to pay my
opponent's attorney fees if I lost because my suit was found to be
frivolous.
These issues are generally not easy calls. The only piece of actual
legal advice I have is that you should NOT rely on posts on Usenet
newsgroups for advice on subjects of this complexity. That advice
includes this post which you are reading right now. IANAL.
nos...@isp.com
> Hypothetically, suppose I have proof that another person
> has made and distributed unauthorized copies of material
> the copyright to which I own.
>
>Must I allege monetary damages to sue, . . .
. . . no . . .
> . . . or can I sure purely for injunctive relief . . .
. . . yes (see 17 U.S.C. 502), although . . .
> . . . such as destroying the infringing copies?
. . . the nature including extent of injunctive relief depends on
knowing more facts about the sort of works infringed, etc., as,
meanwhile, your "purely" as if a synonym for "only" or "merely" and
your "or" if you use it exclusively suggests (though also continuing
to depend, too, on other facts you haven't yet posted hypothetically
or otherwise such as whether/when you will have registered, etc.) that
you may be overlooking entitlement to statutory damages and maybe
other relief (re. which see especially 17 U.S.C. 504 and, indeed, all
the other provisions of Chap. 5 of Tit. 17).
Barry Gold
This is for discussion purposes only, and is not legal advice. I'm
not a lawyer. If you want legal advice, hire a lawyer.
AFAIK you can sue for injunctive relief -- destruction of the
infringing copies and a halt to further creation or distribution of
unauthorized copies or derivative works.
But you can _also_ receive statutory damages of between $750 - $30,000
per work, at the discretion of the court. If you can show willful
infringement, you could be entitled to damages of up to $150,00 per
work. (But defendants who can show that they were "not aware and had
no reason to believe" that they infringing may have damages reduced to
$200 per work.)
http://en.wikipedia.org/wiki/Statutory_damages_for_copyright_infringement
--
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Conchord: http://www.conchord.org
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Fred the Red Shirt
http://groups.google.com/group/misc.legal.moderated/msg/ef533ef5f9b69c92?hl=en&dmode=source
On Dec 30, 9:48 am, Cy Pres <c.p...@yahoo.com> wrote:
> ... You don't mention what you hope to achieve.
This really is hypthetical so what I hope to achieve is a discussion
of the possibilities.
>...
> (discussion of possibilities deleted for brevity)
> http://www.law.cornell.edu/uscode/html/uscode17/usc_sec_17_00000504--...
>
> However, note that one important prerequisite to obtaining statutory
> damages is that you filed copyright registration for the work PRIOR to
> infringement.
>
> http://www.law.cornell.edu/uscode/html/uscode17/usc_sec_17_00000412--...
>
>...
> Personally, if I were in a situation like what you describe, though
> you don't go into any details, my decision would largely be based on
> whether or not I felt that I was likely to get my attorney's fees paid
> (a highly technical issue and see Fogerty v. Fantasy, Inc., 510 U.S.
> 517 (1994) and similar subsequent cases for rules on how this
> happens), or worse, whether I faced the prospect of having to pay my
> opponent's attorney fees if I lost because my suit was found to be
> frivolous.
> ...
Well, maybe that ties back into my question. If there were no
monetary
damages caused by the infringement, would that render the claim
frivolous.
Fleshing out the hypothetical a bit, suppose I write a poem that is
arguably
so bad no one would ever pay me for the rights to publish it. I
freely admit
that I have no expectation of ever making money from it. Someone else
does, however, make copies of it and gives them away. He freely
admits doing so.
I have a clear case for copyright infringement, but by my own
admission
the infringement did not deprive me of any income.
Would the absence of monetary damages render the suit frivolous?
Cy Pres
<fredf...@spamcop.net> wrote:
>Well, maybe that ties back into my question. If there were no
>monetary
>damages caused by the infringement, would that render the claim
>frivolous.
Not by itself.
>Fleshing out the hypothetical a bit, suppose I write a poem that is
>arguably
>so bad no one would ever pay me for the rights to publish it. I
>freely admit
>that I have no expectation of ever making money from it. Someone else
>does, however, make copies of it and gives them away. He freely
>admits doing so.
Then he is infringing your copyright. Depending on the circumstances,
it might be fair use, but it is rarely fair use to copy an entire
work, especially if the use is without justification.
>I have a clear case for copyright infringement, but by my own
>admission
>the infringement did not deprive me of any income.
>Would the absence of monetary damages render the suit frivolous?
Not by itself. You would probably still be entitled at least to the
minimum statutory damages and an injunction against further
publication. However, it's possible that you could prosecute such a
suit in a manner that was frivolous. For example, you have no
monetary loss, and the defendant has already offered to settle and
agree never to repeat the infringing activity. Despite this, you
pursue the litigation absurdly aggressively, driving up the costs for
everyone into the millions, harassing the defendant and third parties
with burdensome discovery requests and repeated attempts to have
everyone within two statute miles of the court found in contempt for a
variety of bogus reasons. You end up winning nothing more than the
injunction you could have gotten through a consent decree.
Even though you squeezed out a technical victory, you could still end
up paying the other side's legal fees for having pursued an otherwise
meritorious suit in a frivolous manner and for having been completely
unreasonable in how you pursued it, especially if it's obvious you did
it solely to harass the other side.
The burden is pretty high to shift fees to a plaintiff, though. In
your hypothetical circumstances, I wouldn't be afraid to file a
lawsuit solely for injunctive relief. However, I wouldn't expect to
get your own attorney's fees paid if the suit seems to be over a
completely trivial matter.
Seth
Fred the Red Shirt <fredf...@spamcop.net> wrote:
>Fleshing out the hypothetical a bit, suppose I write a poem that is
>arguably so bad no one would ever pay me for the rights to publish
>it. I freely admit that I have no expectation of ever making money
>from it. Someone else does, however, make copies of it and gives
>them away. He freely admits doing so.
>
>I have a clear case for copyright infringement, but by my own
>admission the infringement did not deprive me of any income.
>
>Would the absence of monetary damages render the suit frivolous?
No. Suppose you're a professional poet, and you're ashamed of some
stuff you wrote while a student. The fact that it isn't salable
doesn't mean someone else is allowed to publish it against your will.
Even if you aren't a professional poet, you have the right to not have
something you wrote published against your wishes.
Seth