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Factors in Assessing Statutory Damages for Digital Copyright Infringement

By Stan Soocher

A recent federal district court award of $6.6 million in statutory damages to music publishers for the unlicensed use of song lyrics by the website LiveUniverse and its operator was hailed as the first of its type for owners of song lyrics, and thus a significant milestone for content owners in the digital era. Peermusic III Ltd. v. LiveUniverse Inc., 09-6160 (C.D.Calif. 2012). In addition, since September 2011 two federal appeals courts, in cases against unauthorized file-sharers, declined to void the Copyright Act's statutory damages provisions as violating constitutional due process. Capitol Records Inc. v. Thomas-Rasset, 692 F.3d 899 (8th Cir. 2012); Sony BMG Music Entertainment v. Tenenbaum, 660 F.3d 487 (1st Cir. 2011).

In the LiveUniverse case, Judge George H. Wu of the U.S. District Court for the Central District of California awarded $12,500 for each of 528 songs' lyrics posted on the defendant website. The district judge also issued a permanent injunction and awarded attorney fees and costs in favor of the publishers. The statutory damages, for which judges have wide discretion, followed three contempt orders, violation of a preliminary injunction and a default judgment against LiveUniverse.

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