Hey guys, I've seen several court cases largely dismissed by the inability of the plaintiff to give a price for the damages they have experienced from the defendant's non-compliance with an agreement
With copyright matters there can be statutory damages, but with conditions behind licensing and sublicensing it gets murky.
How do you price damages, in theory or in actual experience? Thanks
This is relevant to general industry because of the case-by-case agreements we tend to enter into
17 USC § 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 section 118 (f)) 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).
right, these are the statutory damages that I already mentioned we are not talking about
Caitin wrote: 17 USC § 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 section 118 (f)) 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).
The term you are looking for is "measure of damages." Depending on the kind of contract breach you are looking at, the measure of damages may be calculated differently.
Also bear in mind if the breach is use in excess of license terms, that might then be infringement rather than mere breach. So, my question to you is: Are you asking how much to invoice a client who breaches a contract or are you asking how much to demand in litigation?
R A V E N D R I V E wrote: right, these are the statutory damages that I already mentioned we are not talking about
Attacking profits are a form of statutory damages, but they require proof of damages in the form of gross revenue attributable to the breach. Most statutory damages don't require proof of damages at all, only of the act which triggers them.
Actual damages, when provided by the statute, are somewhat different because they require proof of actual damages to collect.
These are just issues of nomenclature and legalese, but the terminology is significant for us all to understand each other.
GPS Studio Services wrote: Attacking profits are a form of statutory damages, but they require proof of damages in the form of gross revenue attributable to the breach. Most statutory damages don't require proof of damages at all, only of the act which triggers them.
Actual damages, when provided by the statute, are somewhat different because they require proof of actual damages to collect.
These are just issues of nomenclature and legalese, but the terminology is significant for us all to understand each other.
Thanks
I don't want to limit this discussion to just copyrights, so this may be overly broad
but in general it is a concept I want to understand better because it seems like many agreements simply have no consequences of breaching them. Even after civil talks break down and the courts get involved, the offeror often cannot explain what their actual damages were, leaving the consequences to be none for the defendant
also, being a consequentialist, its something I'd like to be able to judge objectively from both the offeror and offeree side of agreements
one time, the attorneys for one company threatened to sue a company I was employed at over some SEO tweaks that showed up in the other company's google alerts. I told them to price the damages and go buy ice cream with that dollar. But I actually wasn't sure what I was talking about, and I'd like to be
Non-lawyer definition:
Usually damages are a figure agreed to as fair by the attorneys for the two parties that is normally a lot more than the damagor thinks is fair but a lot less than than the damagee thinks is fair.
Sometimes it's the amount determined by a judge and/or a jury in which case it's not what anyone actually involved thinks is fair.
In neither case is it likely to match the actual damages whether real or imagined.
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