Page:The librarian's copyright companion, by James S. Heller, Paul Hellyer, Benjamin J. Keele, 2012.djvu/50

34 These amounts can quickly add up in cases that involve multiple infringing acts, which are becoming more common in the Internet era. In a recent case against a college student who willfully infringed the copyright of thirty songs he downloaded and shared online, the jury awarded statutory damages of $22,500 per song, for a total of $675,000. The trial judge held that the damage award was so large that it violated the constitution’s due process requirements and reduced the award to $67,500, but the 7th Circuit Court of Appeals disagreed and reinstated the jury’s award. The amount of the award is stunning considering that the student could have bought the songs for the cost of a few CDs, and it illustrates the power of statutory damages.

But before you start sweating, consider some other aspects of copyright law that work in favor of defendants. Even if a court finds that there was an infringement, statutory damages may be reduced significantly if the defendant was an “innocent infringer,” someone who was not aware of and had no reason to believe that his or her acts were infringing. When this is the case, a court has discretion to reduce statutory damages to as little as $200.

Furthermore, a court may not assess any statutory damages if the infringer is an employee of a non-profit educational institution, library, or archives who, acting under the scope of his or her employment, actually and reasonably believed that the use was fair under section 107. Although section 504 does not expressly say so, one might reason that no statutory damages would be assessed against a library employee who believed that the use was permitted under the section 108 library exemption or any of the other statutory exemptions in the Act.

This does not, of course, give library employees a license to copy. The damage remission provision does not apply if the employee knew or should have known that his or her actions were infringing. For example, if a library employee knew she was violating the library’s own policies when she copied material for a patron, it’s unlikely that a court would view her as an innocent infringer.