zlacker

That's for criminal laws where prosecutorial discretion can then (in principle) be used in borderline cases to prevent unjust outcomes.

If you give people a claim for damages which is an order of magnitude larger than their actual damages, it encourages litigiousness and becomes a vector for shakedowns because the excessive cost of losing pressures innocent defendants to settle even if there was a 90% chance they would have won.

Meanwhile both parties have the incentive to settle in civil cases when it's obvious who is going to win, because a settlement to pay the damages is cheaper than the cost of going to court and then having to pay the same damages anyway. Which also provides a deterrent to doing it to begin with, because even having to pay lawyers to negotiate a settlement is a cost you don't want to pay when it's clear that what you're doing is going to have that result.

And when the result isn't clear, penalizing the defendant in a case of first impression isn't just either, because it wasn't clear and punitive measures should be reserved for instances of unambiguous wrongdoing.

>>Anthon+(OP)
Statutory damages were written into the first federal copyright law in 1790, and earlier in state law (specified in Pounds because the dollar hadn't been invented yet).

>>badlib+d2
The first federal copyright law in 1790:

https://copyright.gov/about/1790-copyright-act.html

Specified in dollars because dollars had been invented (in 1789), but in the amount of one half of one dollar, i.e. $0.50. That's 1790 dollars, of course, so a little under $20 today. (There was basically no inflation for the first 100+ years of that because the US dollar was still backed by precious metals then; a dollar was worth slightly more in 1900 than in 1790.)

That seems more like an attempt to codify some amount of plausible actual damages so people aren't arguing endlessly about valuations, rather than an attempt to impose punitive damages. Most notably because -- unlike the current method -- it scales with the number of sheets reproduced.

>>Anthon+37
My fault for the hanging clause: nearly a dozen state laws preceded it and used pounds. Mostly because they were based on the British law and also because the war made a mess of the currency situation.

Statutory damages were added to reduce the burden on plaintiffs. Which encourages people to stay in line. How well this worked out and what it means when some company nobody heard of 4 years ago downloads a billion copyrighted pages and raises $3.5 billion against a $60 billion valuation...

Well suddenly $20/page still sounds about right.

>>badlib+kc
The <$20/page was the same for maps and charts, i.e. things that typically have a single page in the entire work, and came from a time when printing was done a page at a time, i.e. you'd lay out a page and print as many copies of that page as you'd expect to make copies of the entire book, then hide them somewhere else while you print the next page. It was basically a proxy for the number of copies of the work they caught you trying to make, not an attempt to turn a single copy of a 1000 page book into a 1000x multiplier on liability. Notice that otherwise you're letting the infringer choose the amount of the damages, because a larger page size or tighter layout would fit more words per page and therefore have fewer pages per book. (How many "pages" is an HTML document with infinite scroll?)

> Statutory damages were added to reduce the burden on plaintiffs. Which encourages people to stay in line.

It encourages people to not spend a lot of resources speculating about damages. That doesn't mean you need the amount to be punitive rather than compensatory.

>>Anthon+Ze
Agree that a photo of a celebrity and a film containing that celebrity shouldn't have the same number. But a large punitive number in the context of willful infringement seems right to me. And in practice it's all negotiated down anyway, as evidenced by Internet Archive's fourth 30-day stay of its pending $600+ million lawsuit.

>>badlib+3g
"In practice it's negotiated down anyway" is precisely the issue. If they bring a questionable case against you and you think there's a significant chance you could win, but then there's a small chance you get bankrupted, there is unreasonable pressure for you to settle even if the plaintiffs are in the wrong.

>>Anthon+Jh
I'm not sure what a "questionable case" for willful copyright infringement might look like. Or an example where someone was clearly in the right and got screwed. It isn't the debtor's prison era.

Four factor test seems to be working, even in this case. Don't love it (it goes against my values and what I need to do in my job) but I get it.

Edit: we've triggered HN's patience for this discussion and it's now blocking replies. You do seem a bit long on Google and short on practical experience here. How else would you propose these types of disagreements get sorted? ("Anyone can be sued for anything" notwithstanding.)

There are explicltly no punitive damages in US Copyright law. And the "willful" provision in practice means demonstrating ongoing disregard, after being informed. It's a long walk to the end of that plank.

>>badlib+dl
> I'm not sure what a "questionable case" for willful copyright infringement might look like.

You did anything which it's not clear whether it's fair use or not. Willfulness is whether you knew you were doing it, not whether you knew whether it was fair use, which in many cases nobody knows until a court decides it, hence the problem.

You have to do it in order to get into court and find out of you're allowed to do it (a ridiculous prerequisite to begin with), and then if it goes against you, you have to pay punitive damages?

>>Anthon+vl
What sort of things do you think people do that it is often the case that there is a genuine question of whether or not the use was fair?

>You have to do it in order to get into court and find out of you're allowed to do it (a ridiculous prerequisite to begin with), and then if it goes against you, you have to pay punitive damages?

Nobody made you undertake the questionable fair use. If you're gonna fease, you better not malfease.

>>freeja+eG
> What sort of things do you think people do that it is often the case that there is a genuine question of whether or not the use was fair

Every time some new technology or other change happens, things become possible that didn't used to be and then nobody knows what the law is going to be until a judge decides the case.

> Nobody made you undertake the questionable fair use. If you're gonna fease, you better not malfease.

But how are you supposed to know that before you get sued? If it's something you are allowed to do, but you don't know that yet for sure, what do you do to find out?

>>Anthon+YC8
You can be sued for anything and asked to defend your position for anything.

You need to stop positing hypotheticals and start stating examples. Yes, technology advances and everything from abortion to transportation needs to be reconsidered on an ongoing basis. Admittedly the process for doing so hasn't changed much since the 18th century, but do you have a proposal for improving it?

Between the four factor test, being able to petition the Librarian of Congress for exemptions, and compulsory licensing, in many cases copyright is in a better state than most.

Aside from Internet Archive who continued to do something 400,000 times despite being formally asked to stop three times (scanning old records), I'm unaware of any similar acts of stupidity. Can you provide any examples of recent problems in the space?

Do you have some great idea that you're afraid to try because of lack of specificity in copyright law? There's no shortage of VCs who will take the risk sorting it out; they've made lots of money doing this before.

And you can always ask for permission first. But I suppose where's the fun in that.