[AnthonyMouse]

The first federal copyright law in 1790:

https://copyright.gov/about/1790-copyright-act.html

Specified in dollars because dollars had been invented (in 1789), but in the amount of one half of one dollar, i.e. $0.50. That's 1790 dollars, of course, so a little under $20 today. (There was basically no inflation for the first 100+ years of that because the US dollar was still backed by precious metals then; a dollar was worth slightly more in 1900 than in 1790.)

That seems more like an attempt to codify some amount of plausible actual damages so people aren't arguing endlessly about valuations, rather than an attempt to impose punitive damages. Most notably because -- unlike the current method -- it scales with the number of sheets reproduced.

[badlibrarian]

My fault for the hanging clause: nearly a dozen state laws preceded it and used pounds. Mostly because they were based on the British law and also because the war made a mess of the currency situation.

Statutory damages were added to reduce the burden on plaintiffs. Which encourages people to stay in line. How well this worked out and what it means when some company nobody heard of 4 years ago downloads a billion copyrighted pages and raises $3.5 billion against a $60 billion valuation...

Well suddenly $20/page still sounds about right.

[AnthonyMouse]

The <$20/page was the same for maps and charts, i.e. things that typically have a single page in the entire work, and came from a time when printing was done a page at a time, i.e. you'd lay out a page and print as many copies of that page as you'd expect to make copies of the entire book, then hide them somewhere else while you print the next page. It was basically a proxy for the number of copies of the work they caught you trying to make, not an attempt to turn a single copy of a 1000 page book into a 1000x multiplier on liability. Notice that otherwise you're letting the infringer choose the amount of the damages, because a larger page size or tighter layout would fit more words per page and therefore have fewer pages per book. (How many "pages" is an HTML document with infinite scroll?)

> Statutory damages were added to reduce the burden on plaintiffs. Which encourages people to stay in line.

It encourages people to not spend a lot of resources speculating about damages. That doesn't mean you need the amount to be punitive rather than compensatory.

[badlibrarian]

Agree that a photo of a celebrity and a film containing that celebrity shouldn't have the same number. But a large punitive number in the context of willful infringement seems right to me. And in practice it's all negotiated down anyway, as evidenced by Internet Archive's fourth 30-day stay of its pending $600+ million lawsuit.

[AnthonyMouse]

"In practice it's negotiated down anyway" is precisely the issue. If they bring a questionable case against you and you think there's a significant chance you could win, but then there's a small chance you get bankrupted, there is unreasonable pressure for you to settle even if the plaintiffs are in the wrong.

[badlibrarian]

I'm not sure what a "questionable case" for willful copyright infringement might look like. Or an example where someone was clearly in the right and got screwed. It isn't the debtor's prison era.

Four factor test seems to be working, even in this case. Don't love it (it goes against my values and what I need to do in my job) but I get it.

Edit: we've triggered HN's patience for this discussion and it's now blocking replies. You do seem a bit long on Google and short on practical experience here. How else would you propose these types of disagreements get sorted? ("Anyone can be sued for anything" notwithstanding.)

There are explicltly no punitive damages in US Copyright law. And the "willful" provision in practice means demonstrating ongoing disregard, after being informed. It's a long walk to the end of that plank.

[AnthonyMouse]

> I'm not sure what a "questionable case" for willful copyright infringement might look like.

You did anything which it's not clear whether it's fair use or not. Willfulness is whether you knew you were doing it, not whether you knew whether it was fair use, which in many cases nobody knows until a court decides it, hence the problem.

You have to do it in order to get into court and find out of you're allowed to do it (a ridiculous prerequisite to begin with), and then if it goes against you, you have to pay punitive damages?