Page 23 - Intellectual Property Disputes

(1)...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..." fn 38

However, the copyright owner’s recovery cannot be duplicative. For example, the copyright owner may
not recover both the profits the infringer made and the profits that the copyright owner would have made
on the same sales.

17 USC 504 authorizes courts to grant copyright owners actual damages suffered as a result of the
infringement. In addition, any profits of the infringer attributable to the infringement are granted to the
copyright owner in order to remedy the damage caused by the infringement, as long as these damages
are not duplicative. Should the copyright owner be unable to prove actual damages or the defendant’s
profits, 17 USC 504 alternatively grants the copyright owner the right to elect (at any time before final
judgment is rendered) to recover an award of statutory damages, instead of actual damages and profits.

Various remedies beyond monetary damages are available to a copyright owner who prevails in an
infringement action. These remedies include injunctive relief under 17 USC 502 and impoundment and
destruction of the subject-infringing matter under 17 USC 502. As discussed previously, statutory
damages may also be available under 17 USC 504.

Trade Secrets Overview

Until the enactment of the Defend Trade Secrets Act of 2016 (DTSA), 18 USC. § 1831, et seq., civil
remedies were the jurisdiction of state law, in which most states have adopted the Uniform Trade
Secrets Act (UTSA), which was last amended in 1985. The DTSA does not pre-empt state laws already
addressing trade secrets, but it coexists and may be more attractive to plaintiffs because the DTSA
harmonizes U.S. law by building on the Economic Espionage Act (18 USC 1831–1839) to create a
uniform standard for trade secret misappropriation. Companies will be able to craft one set of non-
disclosure policies knowing that federal law will protect their trade secrets.

fn 38 17 USC 504.

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