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Copyright: Infringement & Remedies

    The entire section on infringement and remedies can be found here.

    § 501. Infringement of copyright

    (a) Anyone who violates any of the exclusive rights of the copyright owner as provided by sections 106 through 122 or of the author as provided in section 106A (a), or who imports copies or phonorecords into the United States in violation of section 602, is an infringer of the copyright or right of the author, as the case may be. For purposes of this chapter (other than section 506), any reference to copyright shall be deemed to include the rights conferred by section 106A (a). As used in this subsection, the term “anyone” includes any State, any instrumentality of a State, and any officer or employee of a State or instrumentality of a State acting in his or her official capacity. Any State, and any such instrumentality, officer, or employee, shall be subject to the provisions of this title in the same manner and to the same extent as any nongovernmental entity.

    (b) The legal or beneficial owner of an exclusive right under a copyright is entitled, subject to the requirements of section 411, to institute an action for any infringement of that particular right committed while he or she is the owner of it. The court may require such owner to serve written notice of the action with a copy of the complaint upon any person shown, by the records of the Copyright Office or otherwise, to have or claim an interest in the copyright, and shall require that such notice be served upon any person whose interest is likely to be affected by a decision in the case. The court may require the joinder, and shall permit the intervention, of any person having or claiming an interest in the copyright.

    Comments: Examples of copyright infringement on the Internet are numerous and highly publicized (e.g. the recording industry's challenges with the illegal download of music files). The term "piracy" is often used with respect to copyright infringement and its use within this context apparently goes back over a hundred years. Most business people on the Internet are likely to face infringement suits from less obvious illegal activities such as inappropriately copying text or the illegal use of copyrighted images (e.g. photos). Much of this illegal use goes unchallenged simply because it is either too time consuming for the author to track, or the infringer appears to lack assets sufficient to make a suit worthwhile. Of course, this all changes when/if your business "takes off."

    § 504. Remedies for infringement: Damages and profits

    (a) In General.— Except as otherwise provided by this title, an infringer of copyright is liable for either—
    (1) the copyright owner’s actual damages and any additional profits of the infringer, as provided by subsection(b); or
    (2) statutory damages, as provided by subsection (c).

    (b) Actual Damages and Profits.— The copyright owner is entitled to recover the actual damages suffered by him or her as a result of the infringement, and any profits of the infringer that are attributable to the infringement and are not taken into account in computing the actual damages. In establishing the infringer’s profits, the copyright owner is required to present proof only of the infringer’s gross revenue, and the infringer is required to prove his or her deductible expenses and the elements of profit attributable to factors other than the copyrighted work.

    (c) Statutory Damages.—
    (1) Except as provided by clause (2) of this subsection, the copyright owner may elect, at any time before final judgment is rendered, to recover, instead of actual damages and profits, an award of statutory damages for all infringements involved in the action, with respect to any one work, for which any one infringer is liable individually, or for which any two or more infringers are liable jointly and severally, in a sum of not less than $750 or more than $30,000 as the court considers just. For the purposes of this subsection, all the parts of a compilation or derivative work constitute one work.
    (2) In a case where the copyright owner sustains the burden of proving, and the court finds, that infringement was committed willfully, the court in its discretion may increase the award of statutory damages to a sum of not more than $150,000. In a case where the infringer sustains the burden of proving, and the court finds, that such infringer was not aware and had no reason to believe that his or her acts constituted an infringement of copyright, the court in its discretion may reduce the award of statutory damages to a sum of not less than $200. The court shall remit statutory damages in any case where an infringer believed and had reasonable grounds for believing that his or her use of the copyrighted work was a fair use under section 107, if the infringer was:
    (i) an employee or agent of a nonprofit educational institution, library, or archives acting within the scope of his or her employment who, or such institution, library, or archives itself, which infringed by reproducing the work in copies or phonorecords; or
    (ii) a public broadcasting entity which or a person who, as a regular part of the nonprofit activities of a public broadcasting entity (as defined in subsection (g) of section 118) infringed by performing a published nondramatic literary work or by reproducing a transmission program embodying a performance of such a work.
    (3)
    (A) In a case of infringement, it shall be a rebuttable presumption that the infringement was committed willfully for purposes of determining relief if the violator, or a person acting in concert with the violator, knowingly provided or knowingly caused to be provided materially false contact information to a domain name registrar, domain name registry, or other domain name registration authority in registering, maintaining, or renewing a domain name used in connection with the infringement.
    (B) Nothing in this paragraph limits what may be considered willful infringement under this subsection.
    (C) For purposes of this paragraph, the term “domain name” has the meaning given that term in section 45 of the Act entitled “An Act to provide for the registration and protection of trademarks used in commerce, to carry out the provisions of certain international conventions, and for other purposes” approved July 5, 1946 (commonly referred to as the “Trademark Act of 1946”; 15 U.S.C. 1127).

    Comments: As noted above, an infringer may be on the hook for either actual damages, or if the plaintiff can show willful infringement, then up to $150,000 of statutory damages, and usually attorney's fees. In general, a plaintiff will have to prove the following: (1) that they own a valid copyright (here registration provides a rebuttable presumption of validity/ownership); (2) that there was actual copying of the work; (3) some sort of misappropriation (i.e. what was copied was not a fact, idea, theme, etc.); and (4) that there are no defenses available (e.g. fair use). With respect to "actual copying," the courts will often use a standard of "striking similarity" (coupled with access) to establish this element. The semi-permanent nature of the Internet, via tools such as the "way back machine," are quite helpful evidentiary tools that often work to the benefit of plaintiffs. Finally, depending on the type of work, criminal penalties may also be imposed.

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