COMMENTS AND VIEWS SUBMITTED TO THE

COPYRIGHT OFFICE

ON

LIABILITY OF INNOCENT INFRINGERS

OF COPYRIGHTS

COMMENTS AND VIEWS SUBMITTED TO THE COPYRIGHT OFFICE ON LIABILITY OF INNOCENT INFRINGERS OF COPYRIGHTS

By John Schulman

JANUARY 13, 1958.

The study of "Innocent Infringers" prepared by Latman and Tager gives a good review of the problem's legal history.

I think that Mr. Solberg's analysis, although made many years ago, is still valid, and that there is little substantial danger to the person who acts with ordinary caution.

On the other hand, it is sometimes necessary to make compromises to dispel fears. That is, if you remember, what we did in the amendment to section 1(c) (see study, p. 143).

Although this kind of limitation may be acceptable in very specific areas, it should not be adopted as a general philosophy or policy. In order to determine the areas wherein the exception would lie, each category should be considered separately.

By J. A. Gerardi

JOHN SCHULMAN.

In one on your studies the subject of "Innocent Infringement" was discussed. It is my feeling that the law on this subject should be clarified or amended in some degree. For instance, a court should not be bound to grant the minimum statutory damage for copyright violation in a case of innocent infringement of the following type: Supposing that the Government in one of its many circulars or bulletins republished an article from a magazine without permission and without the knowledge of the magazine publisher, should a person who uses the material, in whole or in part, in connection with another article be subjected to liability for infringement? I do not think the present law gives the court any discretion in the matter.

By George E. Frost

J. A. GERARDI.

MARCH 1, 1958.

Re: "Liability of Innocent Infringers."

The essay by Messrs. Latman and Trager on the above subject is an excellent piece which I have read with interest and profit.

My general feeling is that the law should leave a maximum range for judicial discretion in varying the award in accordance with the culpability of the defendant. With this basic thought in mind, I would answer the questions on page 158 along the following lines:

A. I would not absolve innocent infringers or limit the remedies available against them. I would, however, arrange the statutes so that a trial judge could reduce the monetary award when confronted with a really innocent infringer.

B. In my judgment the cases listed justify special statutory treatment only if this is necessary to get a bill passed, and I would resist strongly any exemption of printers.

C. Lack of a copyright notice probably should be listed in a statute as an element to go into the exercise of discretion as to the award.

D. My feeling is that actual damages, profits, statutory damages, impounding and destruction of copies, and costs should be discretionary in cases of innocent infringement. I would doubt that injunction should be other than mandatory