The Combined Impact of Statutory Damages and Secondary Liability in the U.S. Copyright Regime Under the Fourth Circuit Standard

Two aspects of U.S. federal copyright law combine to create disproportionately large awards in recent infringement cases, with no relationship to any actual harms: (a) plaintiffs’ ability to obtain statutory damages awards without any proof of harm and (b) doctrines of secondary liability, under which plaintiffs can sue parties other than the actual infringer. The Fourth Circuit adopted standards for secondary “contributory liability” that could effectively require any legitimate digital service provider to terminate any customer about whom the service provider receives multiple complaints.