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Authors

Joe Donnini

Abstract

Should copyright remedy laws be changed to address the proliferation of sharing of online content? On one hand, harsh penalties may improve compensation and infringement deterrence; on the other hand, harsh penalties may harm the interests of free expression and the enrichment of society through sharing. This article focuses on identifying the ideal level of enforcement and proposes a new remedy scheme to appropriately address social media sharing versus commercial misappropriation.

In order to do that, Part I of this article explores the purposes of compensation and deterrence that are behind the copyright statutory remedy scheme. Thereafter, Part II sheds light on the history and policy choices made by courts and Congress as the remedy scheme evolved from the Copyright Act of 1790 up to the Copyright Act of 1976. Part III analyzes the Copyright Act of 1976 with respect to damages as set forth in § 504. From this analysis, it is clear that there has been a theme of arbitrary and punitive awards that has carried over into the online world. Finally, Part IV recommends building a stronger foundation for a revised remedy scheme to address the original purposes of statutory damages in the new digital age.

This article will reveal how the Copyright Act of 1976, with respect to statutory damages, was built upon an improper foundation. Therefore, the proposed changes in copyright remedies are designed to tie back to the purposes of compensation and deterrence, to meet the demands of the new media age. The article also recommends a two-tiered system that would more effectively balance the competing interests of protecting expression and allowing sharing for societal benefit. The proposed system would allow courts flexibility in assessing damages while providing more directed guidance to prevent excessive awards.

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