Statutory damages are a
damage
Damage is any change in a thing, often a physical object, that degrades it away from its initial state. It can broadly be defined as "changes introduced into a system that adversely affect its current or future performance".Farrar, C.R., Sohn, H., ...
award in
civil law, in which the amount awarded is stipulated within the statute rather than being calculated based on the degree of harm to the plaintiff. Lawmakers will provide for statutory damages for acts in which it is difficult to determine a precise value of the loss suffered by the victim. This could be because calculation of a value is impractical, such as in intellectual property cases where the volume of the infringement cannot be ascertained. It could also be because the nature of the injury is subjective, such as in cases of a violation of a person's rights. The award might serve not only as compensation but also for deterrence, and it is more likely to succeed in serving a deterrence function when the potential defendants are relatively sophisticated parties.
Other functions that can be served by statutory damages include reducing administrative costs and clarifying the consequences of violating the law.
The amount of statutory damages can be set on a per-incident basis, such as in the
Fair Debt Collection Practices Act
The Fair Debt Collection Practices Act (FDCPA), Pub. L. 95-109; 91 Stat. 874, codified as –1692p, approved on September 20, 1977 (and as subsequently amended) is a consumer protection amendment, establishing legal protection from abusive deb ...
, which gives statutory damages of up to $1,000 for a violation of its provisions. Amounts could also be set per day, as in acts proscribing human-rights violations which might specify damages of $1,000 per day. The term also applies wherein damages are a multiple of what the legally entitled payment would have been in the matter, which would be typical for copyright or trademark infringement.
The principle of ''
in pari delicto
''In pari delicto (potior/melior est conditio possidentis)'', Latin for "in equal fault (better is the condition of the possessor)", is a legal term used to refer to two persons or entities who are equally at fault, whether the malfeasance in ques ...
'' applies, preventing people from suing others for crimes in which they also are equally at fault.
Intellectual property
In
intellectual property
Intellectual property (IP) is a category of property that includes intangible creations of the human intellect. There are many types of intellectual property, and some countries recognize more than others. The best-known types are patents, cop ...
cases (relating to
copyright
A copyright is a type of intellectual property that gives its owner the exclusive right to copy, distribute, adapt, display, and perform a creative work, usually for a limited time. The creative work may be in a literary, artistic, education ...
or
trademark
A trademark (also written trade mark or trade-mark) is a type of intellectual property consisting of a recognizable sign, design, or expression that identifies products or services from a particular source and distinguishes them from others ...
, for instance), it is often difficult for
plaintiff
A plaintiff ( Π in legal shorthand) is the party who initiates a lawsuit (also known as an ''action'') before a court. By doing so, the plaintiff seeks a legal remedy. If this search is successful, the court will issue judgment in favor of the p ...
s to determine the exact volume of infringement. Thus, statutory damages are often calculated as a multiple of the price for the use of the property, if the infringer had requested and paid for permission.
Other statutes may set a fixed amount for each day the violation occurred, for each violation, work, article, or type of good.
* In the
United States
The United States of America (U.S.A. or USA), commonly known as the United States (U.S. or US) or America, is a country primarily located in North America. It consists of 50 states, a federal district, five major unincorporated territorie ...
, statutory damages are set at a minimum of $750 per work, to a maximum of $150,000. In Europe, directive 2004/48/EC on the Enforcement of Intellectual Property Rights bases the damages on, "the amount of royalties which would have been due if the infringer has requested authorisation".
* The
Lanham (Trademark) Act provides for minimum damages of $1000 and a maximum of $2,000,000 (if willful) for using a counterfeit trademark in commerce (15 U.S.C. § 1117(c), Lanham Act Section 35(c).)
* The
Electronic Communications Privacy Act
Electronic Communications Privacy Act of 1986 (ECPA) was enacted by the United States Congress to extend restrictions on government wire taps of telephone calls to include transmissions of electronic data by computer ( ''et seq.''), added new pro ...
provides for statutory damages for various wiretap offences of $100 per day, up to $10000.
One area of debate between legal and economic scholars that pertains to the quantification of statutory patent damages is whether the court may rely on information that postdates the determined date of the hypothetical negotiation between the patent holder and the alleged infringer. Some commentators argue that the court should rely on postdate information to deter patent infringement and ensure the patent holder's adequate compensation, while others argue that doing so would "give the potential licensee a free option to infringe, which would discourage the potential licensee from promptly entering into a licensing agreement."
Civil rights
California's
Unruh Civil Rights Act
The Unruh Civil Rights Act (colloquially the "Unruh Act") is an expansive 1959 California law that prohibits any business in California from engaging in unlawful discrimination against all persons (consumers) within California's jurisdiction, where ...
(Civ. Code, § 51 section 52) provides for minimum damages of $4000
for victims of discrimination under the
Americans with Disabilities Act
The Americans with Disabilities Act of 1990 or ADA () is a civil rights law that prohibits discrimination based on disability. It affords similar protections against discrimination to Americans with disabilities as the Civil Rights Act of 1964 ...
.
See also
*
Statutory damages for copyright infringement
Statutory damages for copyright infringement are available under some countries' copyright laws.
The charges allow copyright holders, who succeed with claims of infringement, to receive an amount of compensation ''per work'' (as opposed to compe ...
References
Further reading
Samuel L. Bray, Announcing Remedies, 97 Cornell Law Review 753 (2012)
Sheila B. Scheuerman, Due Process Forgotten: The Problem of Statutory Damages and Class Actions 74 Missouri Law Review 103 (2009){{refend
Judicial remedies
Statutory law