Statutory Damages: Copyright law provides plaintiffs that register their copyrights prior to an alleged infringement with statutory damages, meaning they can recover damages from infringers regardless of whether the rightsholders have suffered any actual injury. Statutory damages currently range between $750 and $30,000 for each work infringed and up to $150,000 in cases involving willful infringement. Statutory damages are unpredictable, varying widely from case to case, and they have led to bankruptcy for individuals and the dissolution of companies.

Why it matters: The United States is a global outlier in providing for copyright damages without proof of harm. Congress intended statutory damages to provide a way for courts to give relief in cases where damages are hard to prove, but the law gives little guidance to courts on how to choose appropriate damages amounts. Scholars have described the awards granted by courts as “arbitrary, inconsistent, unprincipled, and sometimes grossly excessive.” The unpredictable and potentially ruinous nature of these damages has a chilling effect on lawful uses, especially uses that are literally harmless and would otherwise have been attended by proportionately low risk.