Page:United States Statutes at Large Volume 117.djvu/2734

 PUBLIC LAW 108–187—DEC. 16, 2003

117 STAT. 2715

any district court of the United States with jurisdiction over the defendant— (A) to enjoin further violation by the defendant; or (B) to recover damages in an amount equal to the greater of— (i) actual monetary loss incurred by the provider of Internet access service as a result of such violation; or (ii) the amount determined under paragraph (3). (2) SPECIAL DEFINITION OF ‘‘PROCURE’’.—In any action brought under paragraph (1), this Act shall be applied as if the definition of the term ‘‘procure’’ in section 3(12) contained, after ‘‘behalf’’ the words ‘‘with actual knowledge, or by consciously avoiding knowing, whether such person is engaging, or will engage, in a pattern or practice that violates this Act’’. (3) STATUTORY DAMAGES.— (A) IN GENERAL.—For purposes of paragraph (1)(B)(ii), the amount determined under this paragraph is the amount calculated by multiplying the number of violations (with each separately addressed unlawful message that is transmitted or attempted to be transmitted over the facilities of the provider of Internet access service, or that is transmitted or attempted to be transmitted to an electronic mail address obtained from the provider of Internet access service in violation of section 5(b)(1)(A)(i), treated as a separate violation) by— (i) up to $100, in the case of a violation of section 5(a)(1); or (ii) up to $25, in the case of any other violation of section 5. (B) LIMITATION.—For any violation of section 5 (other than section 5(a)(1)), the amount determined under subparagraph (A) may not exceed $1,000,000. (C) AGGRAVATED DAMAGES.—The court may increase a damage award to an amount equal to not more than three times the amount otherwise available under this paragraph if— (i) the court determines that the defendant committed the violation willfully and knowingly; or (ii) the defendant’s unlawful activity included one or more of the aggravated violations set forth in section 5(b). (D) REDUCTION OF DAMAGES.—In assessing damages under subparagraph (A), the court may consider whether— (i) the defendant has established and implemented, with due care, commercially reasonable practices and procedures designed to effectively prevent such violations; or (ii) the violation occurred despite commercially reasonable efforts to maintain compliance with the practices and procedures to which reference is made in clause (i). (4) ATTORNEY FEES.—In any action brought pursuant to paragraph (1), the court may, in its discretion, require an undertaking for the payment of the costs of such action, and assess reasonable costs, including reasonable attorneys’ fees, against any party.

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