BYU Law Review


Shani Shisha


The Copyright Act grants certain exclusive rights to authors of creative works. But many of these exclusive rights are notoriously underspecified. And while a rich body of case law grapples with one copyright entitlement—the right to reproduce the copyrighted work— courts rarely engage in earnest with other exclusive rights. As a result, courts appear to have only a rudimentary understanding of the precise scope of copyright law. Because courts focus almost singularly on questions of reproduction, other exclusive rights fall by the wayside. This Article contends, counterintuitively, that the problem is traceable to a much-maligned feature of our copyright system: statutory damages. The Copyright Act allows plaintiffs to recover damages without proof of actual harm. But in practice, critics say, statutory damages often prove excessive, punitive, or otherwise arbitrary. Recent studies show that plaintiffs leverage the specter of statutory damages to obtain favorable settlements on the basis of borderline claims. This Article argues that statutory damages also frustrate the development of substantive copyright law. Statutory damages are awarded per infringed work, no matter how many different rights had been violated in that work. Once courts find an infringement of any right—usually, the right of reproduction—they have little incentive to consider additional violations. If the defendant is found to have reproduced the plaintiff’s work, little else matters. Courts thus gloss over certain exclusive rights and dwell instead on questions of reproduction. The result is a doctrinal wasteland—a vast sphere of little-explored exclusive rights. This Article spotlights the problem, considers its implications, and forges a path toward mending copyright’s doctrinal wasteland.


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