In 1976 the american copyrigh law allowed these damages to be received by the owner of an infringed song. The law said:

“To pay to the copyright proprietor such damages as the copyright proprietor may have suffered due to the infringement, as well as all the profits which the infringer shall have made from such infringement…”

“$10 for every infringing performance”.

Somehow in 1976, “statutory” damages were an abuse added in the new copyright legislation, with a ridiculous cap of $150,000 for both copying and performance, wether personal or for for profit.

So what we see was a dumb law replaced by a more stupid laws. The
$10 for every infringing performance was actually dumb, as it was incentive to infringe because a license to perform a song in a concert could actually cost far more than $10. It was better to infringe and wait. If the copyrightholder protestet, the copyrightholder got a $10 check and that was it.

But the part that said
“To pay to the copyright proprietor such damages as the copyright proprietor may have suffered due to the infringement, as well as all the profits which the infringer shall have made from such infringement…”

Was very sensible and the adiition of totally arbitrary (in the law) statutory damages made no sense at all as the judge in the story seems to be saying.

Statutory damages are also misused by courts and claimants.

One of the rules for giving statutory damages is that you can only award them is if the work was copyright registered before an infringement ocurred.

But judges openly violate the rule of law. In my case against Sonolux, the RIAA record label, the songs were registered on October 2000. At trial it was proved and accepted by the court that Sonolux infringed two of our songs on 16 music records with various artists (we have since discovered it was at leat 24 records, by both Sonolux and Sony), all of which commenced well before 2000. The most recent record commenced sales on about 1997.

So as to minimize the damages the judges went against the law and gave us “statutory damages” of US$150,000 for each song, the most allowed for statutory damages. Sonolux has never paid the award even though it’s owner is Carlos Ardila Lulle, the billionaire Colombia industrialist.

And why did the court actually violate the law? Because the the other option, the only legal one, was to award the profits made from the sale of many millions of records, plus interests, and that would have been a much greater award,of about US$ one million.

See case 01cv2187 (judge Perez Gimenez) in Puerto Rico Federal District Court or
http://rafa_venegas.web.prdigital.com/sonoluxdamageaward.htm

So on the one hand statutory damages (sureley unconstitutional) are abusive when applied to non commercial file sharers, they are ignored by the courts when RIAA members are the infringers and are hurt by them.

Rafael Venegas
http://www.gvenegas.com