INTRODUCTION

One innovation that the United States has contributed to copyright laws in the international arena is the availability of statutory damages as a remedy for copyright owners whose works have been infringed. Under U.S. law, successful plaintiffs are entitled to ask for the extraordinary remedy of statutory damages, in lieu of actual damages or an accounting of defendant’s profits, at any point up to the entry of final judgment. Statutory damages are extraordinary mainly because they allow successful plaintiffs to recover substantial monetary damages without any proof that (1) the plaintiff suffered any actual harm from the infringement, or (2) the defendant profited from the infringement. These damages can be awarded in whatever amount the judge or jury deems “just” in a range between $750 and $30,000 per infringed work, and up to $150,000 per work if infringement is willful.3 Statutory damages have often been criticized as “arbitrary, inconsistent, unprincipled, and sometimes grossly excessive.” U.S. courts have failed to develop guidelines to ensure that these awards actually are just, and many times they are not. Virtually all of the law review literature in the United States has criticized the U.S. statutory dam-age regime.

While all countries with copyright laws allow plaintiffs to be compensated for actual harm arising from infringement, and many allow the disgorgement of defendants’ profits attributable to infringement, most countries in the world — including many developed countries with strong copyright industries such as England, France, Germany, and Australia — do not provide statutory damage awards for copyright infringement. Additionally, although punishment seems to have become a common justification for domestic awards of statutory damages,7 most countries focus their civil remedy regimes on compensation, not punishment. Both the existence of statutory damages and their evolving role as a punitive measure make the United States an outlier in the international arena.