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17.27 Copyright—Damages—Willful Infringement (17 U.S.C. § 504(c)(2))

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17.27 COPYRIGHT—DAMAGES—WILLFUL INFRINGEMENT (17 U.S.C. § 504(c)(2))

An infringement is considered willful when the plaintiff has proved both of the following elements by a preponderance of the evidence:

1. the defendant engaged in acts that infringed the copyright; and

2. the defendant knew that those acts infringed the copyright.

Comment

The statutory damage maximum for willful infringement is $150,000. 17 U.S.C. § 504(c)(2).

The Comment to Instruction 20.25 (Statutory Damages—Willful Infringement—Innocent Infringement) in the 2001 edition contained suggested language for a willful infringement instruction that merely required that a defendant have knowledge that its actions "may influence" the plaintiff’s copyright. Although neither the Copyright Act nor its legislative history defines "willful," the Ninth Circuit defined willful as the defendant’s "knowledge that the defendants’ conduct constituted an act of infringement." See Peer Int’l. Corp. v. Pausa Records, Inc., 909 F.2d 1332, 1335-36 n.3 (9th Cir.1990). Accordingly, this instruction reflects that decision. To refute evidence of willful infringement, the defendant must "not only establish its good faith belief in the innocence of its conduct, it must also show that it was reasonable in holding such a belief." Id. at 1336 (a defendant who ignored the revocation of its license to a copyrighted work and continued to use the work after the revocation, willfully infringed that work). See also Columbia Pictures Television v. Krypton Broad. of Birmingham, Inc., 106 F.3d 284, 293 (9th Cir.1997) ("Willful" means acting "with knowledge that [one’s] conduct constitutes copyright infringement."), rev’d on other grounds, Feltner v. Columbia Pictures Television, Inc., 523 U.S.340 (1998).

Generally, deductions of defendant’s expenses are denied where the defendant’s infringement is willful or deliberate. See Kamar Int’l, Inc. v. Russ Berrie & Co., 752 F.2d 1326, 1331-32 (9th Cir.1984). Apparently a finding of willfulness can also be made in connection with an assessment of defendant’s profits, even though reference to willful infringement is made only in connection with statutory damages. See, e.g., Three Boys Music Corp. v. Bolton, 212 F.3d 477, 487 (9th Cir.2000) (In case involving jury determination of allocation of defendant’s profits, the Ninth Circuit noted in connection with 17 U.S.C.§ 504(b) damages that "non-willful infringers" were entitled to deduct income taxes and management fees actually paid).