On this page
What the statute actually provides
A copyright owner may elect, at any time before final judgment, to recover statutory damages instead of actual damages and profits. 17 U.S.C. section 504(c).
| Category | Range per work | What it requires |
|---|---|---|
| Ordinary statutory damages | $750 to $30,000 | Timely registration under section 412 and a finding of infringement. The amount within the range is what the court considers just. |
| Willful infringement | Up to $150,000 | The copyright owner must prove, and the court must find, that the infringement was committed willfully. The court "may" increase the award. Nothing is automatic. |
| Innocent infringement | As low as $200 | The infringer must sustain the burden of proving, and the court must find, that the infringer was not aware and had no reason to believe the acts constituted infringement. Subject to 17 U.S.C. section 401(d), which forecloses the defense in mitigation where a proper notice appeared on the published copies to which the infringer had access. |
| Actual damages and profits | Proven amount | Available always, but for the download of a subscription film the realistic figure is modest, which is why plaintiffs elect statutory damages. |
Section 504(c)(2) says the court may increase the award for willfulness and may reduce it for innocent infringement. Neither is automatic, and the ceiling is not an entitlement. A demand letter that multiplies the number of works by $150,000 is describing a theoretical maximum that assumes a finding the plaintiff has not made and a discretionary decision no court has taken.
The section 412 gate
Before any of the statutory figures apply to a given work, that work has to get through 17 U.S.C. section 412. No statutory damages and no attorney's fees may be awarded for infringement of an unpublished work commenced before registration, or of a published work commenced after first publication and before registration, unless registration was made within three months after first publication.
Exhibit A supplies the data for this analysis on its face: publication date, registration date, and registration number for every asserted work. Running the comparison work by work is one of the first things competent defense counsel does, and it can materially change the picture. A work that fails the section 412 test is a work for which the plaintiff must prove actual damages, and the actual damages associated with one unauthorized download of a subscription title are not the foundation of a large demand.
Statutory damages are discretionary
Within the applicable range, the amount is committed to the fact finder's discretion. Courts consider factors including the expenses saved and profits earned by the infringer, revenues lost by the plaintiff, the deterrent value of the award, whether the conduct was innocent or willful, the infringer's cooperation in providing evidence, and the conduct and attitude of the parties.
Applied to an individual accused of personal use downloading, several of those factors point toward the lower end of the range. The expenses saved are the price of a subscription. The revenue lost is comparable. Deterrence is served by an award far below the ceiling. This is precisely why these cases resolve rather than proceed to judgment: a judgment risks establishing a number that is inconvenient for a volume plaintiff's demand practice.
Attorney's fees run in both directions
Under 17 U.S.C. section 505, the court in its discretion may award costs and a reasonable attorney's fee to the prevailing party. Not to the plaintiff. To whichever party prevails.
In Kirtsaeng v. John Wiley & Sons, Inc., 579 U.S. 197 (2016), the Supreme Court held that courts should give substantial weight to the objective reasonableness of the losing party's litigating position, while considering all other relevant circumstances. For a plaintiff that pursues a defendant it cannot identify, past the point where the identity problem is apparent, that standard is a genuine risk rather than a rhetorical one. It is also one of the reasons a credible defense changes the economics of a negotiation.
A volume plaintiff's model depends on cases resolving quickly and cheaply. A defendant who is prepared to litigate, and whose counsel has preserved a fee claim, presents exactly the case that model is designed to avoid. That is leverage, and it is available only to a defendant who responded on time and preserved the arguments.
How to read a demand letter
- Count the works and check the registrations. How many works are actually asserted, and how many survive section 412? Those two numbers define the real ceiling.
- Identify the assumption behind the figure. A large number nearly always assumes a willfulness finding at or near the statutory maximum, applied to every work, with no discount for discretion. Strip those assumptions out and the range changes dramatically.
- Separate the ceiling from the expectation. The relevant question is not the maximum the statute permits. It is what a court in that district would realistically award on these facts, and what it would cost each side to get there.
- Note what the letter does not address. Who else had access to the connection. Whether PCAP files exist. Whether the works were timely registered. Silence on those points is informative.
- Do not respond to it yourself. Every word you write becomes an exhibit. Let counsel respond.
Have a demand letter or an Exhibit A?
Send it. We will run the registration analysis against the alleged infringement dates, count what genuinely survives section 412, and tell you what the realistic exposure looks like rather than what the letter says it is.
The exposure that is not money
- Public docket exposure. Once you are named, the caption is a public record and is indexed by commercial docket services and search engines. This is the consequence defendants care most about and the one that argues most strongly for acting while still anonymous, or for seeking leave to proceed as a Doe with identifying filings sealed.
- Default judgment enforcement. A federal money judgment can be enforced by wage garnishment, bank levy, and liens on real property, subject to state exemption law, and it can generally be renewed.
- Injunctive relief and device orders. Strike 3's prayer for relief requests a permanent injunction and orders requiring deletion of the files from devices in the defendant's possession, custody, or control.
- Discovery intrusion. Forensic imaging of computers and phones is sometimes demanded. The scope of any such inspection is negotiable and is the sort of thing that gets negotiated well by counsel and badly by everyone else.
- Collateral consequences. For professionals with licensure or clearance obligations, and for anyone whose employment is sensitive to public records, the docket entry can matter more than the dollars. That is a reason to engage counsel early, not a reason to pay whatever is demanded.