The Federalist Society

The Constitutional Challenge to Statutory Damages for Copyright Infringment: Don’t Gore Section 504

July 20, 2009

Steven M. Tepp

In its 1996 decision in BMW v. Gore, the Supreme Court read the Due Process Clause of the Fourteenth Amendment to impose limitations on the discretion of juries to impose punitive damages. Recently, some defendants in copyright infringement cases have argued that the standard set forth in Gore should be applied at least to limit the Copyright Act’s provision of statutory damages for civil infringement on the grounds that such damages are unconstitutionally excessive, punitive damages. Although no court has ever accepted this argument, there is a relative paucity of decisions on the subject, leaving the ultimate direction of the law in some doubt. This article seeks to begin to fi ll the void by providing a comprehensive review of the question. Part I will recount the history of statutory damages in copyright, demonstrating that they are a long-standing aspect of U.S. law and the product of over two centuries of collective wisdom. Part II will summarize the three-part test the Court crafted in Gore and note the policy considerations that drove the Court’s rationale in that case and its progeny. Part III will analyze whether to apply and what result accrues from the application of that three-part test to statutory damages for copyright infringement. This article concludes that copyright statutory damages are diff erent from the punitive damages at issue in Gore, do not raise the policy concerns that were present in Gore, that the three-part test does not apply, and that even if that test were applied, the provisions of the Copyright Act would pass muster...

The Constitutional Challenge to Statutory Damages to Copyright Infringement: Donít Gore Section 504  


The Federalist Society