17 U.S.C. § 503 — Remedies for infringement: Impounding

Page 168 TITLE 17—COPYRIGHTS § 502 forming rights, a defendant must either actively oper- ate or supervise the operation of the place wherein the performances occur, or control the content of the in- fringing program, and expect commercial gain from the operation and either direct or indirect benefit from the infringing performance. The committee has decided that no justification exists for changing existing law, and causing a significant erosion of the public perform- ance right. Editorial Notes REFERENCES IN TEXT Section 338(a) of the Communications Act of 1934, re- ferred to in subsec. (f)(2), is classified to section 338(a) of Title 47, Telecommunications. AMENDMENTS 2019—Subsec. (e). Pub. L. 116–94 substituted ‘‘section 119(a)(3)’’ for ‘‘section 119(a)(5)’’. 2002—Subsec. (a). Pub. L. 107–273 substituted ‘‘122’’ for ‘‘121’’. 1999—Subsec. (a). Pub. L. 106–44 substituted ‘‘121’’ for ‘‘118’’. Subsec. (e). Pub. L. 106–113, § 1000(a)(9) [title I, § 1011(b)(3)], substituted ‘‘performance or display of a work embodied in a primary transmission’’ for ‘‘pri- mary transmission embodying the performance or dis- play of a work’’. Subsec. (f). Pub. L. 106–113, § 1000(a)(9) [title I, § 1002(b)], added subsec. (f). 1990—Subsec. (a). Pub. L. 101–650 inserted ‘‘or of the author as provided in section 106A(a)’’ after ‘‘118’’ and substituted ‘‘copyright or right of the author, as the case may be. For purposes of this chapter (other than section 506), any reference to copyright shall be deemed to include the rights conferred by section 106A(a).’’ for ‘‘copyright.’’ Pub. L. 101–553 inserted sentences at end defining ‘‘anyone’’ and providing that any State and any instru- mentality, officer, or employee be subject to the provi- sions of this title in the same manner and to the same extent as any nongovernmental entity. 1988—Subsec. (b). Pub. L. 100–568 substituted ‘‘section 411’’ for ‘‘sections 205(d) and 411’’. Subsec. (e). Pub. L. 100–667 added subsec. (e). Statutory Notes and Related Subsidiaries EFFECTIVE DATE OF 1999 AMENDMENT Amendment by section 1000(a)(9) [title I, § 1002(b)] of Pub. L. 106–113 effective July 1, 1999, and amendment by section 1000(a)(9) [title I, § 1011(b)(3)] of Pub. L. 106–113 effective Nov. 29, 1999, see section 1000(a)(9) [title I, § 1012] of Pub. L. 106–113, set out as a note under section 101 of this title. EFFECTIVE DATE OF 1990 AMENDMENTS Amendment by Pub. L. 101–650 effective 6 months after Dec. 1, 1990, see section 610 of Pub. L. 101–650, set out as an Effective Date note under section 106A of this title. Pub. L. 101–553, § 3, Nov. 15, 1990, 104 Stat. 2750, pro- vided that: ‘‘The amendments made by this Act [enact- ing section 511 of this title and amending this section and sections 910 and 911 of this title] shall take effect with respect to violations that occur on or after the date of the enactment of this Act [Nov. 15, 1990].’’ EFFECTIVE DATE OF 1988 AMENDMENTS Amendment by Pub. L. 100–667 effective Jan. 1, 1989, see section 206 of Pub. L. 100–667, set out as an Effective Date note under section 119 of this title. Amendment by Pub. L. 100–568 effective Mar. 1, 1989, with any cause of action arising under this title before such date being governed by provisions in effect when cause of action arose, see section 13 of Pub. L. 100–568, set out as a note under section 101 of this title. CAUSES OF ACTION ARISING UNDER PREDECESSOR PROVISIONS Pub. L. 94–553, title I, § 112, Oct. 19, 1976, 90 Stat. 2600, provided that: ‘‘All causes of action that arose under title 17 before January 1, 1978, shall be governed by title 17 as it existed when the cause of action arose.’’ § 502. Remedies for infringement: Injunctions (a) Any court having jurisdiction of a civil ac- tion arising under this title may, subject to the provisions of section 1498 of title 28, grant tem- porary and final injunctions on such terms as it may deem reasonable to prevent or restrain in- fringement of a copyright. (b) Any such injunction may be served any- where in the United States on the person en- joined; it shall be operative throughout the United States and shall be enforceable, by pro- ceedings in contempt or otherwise, by any United States court having jurisdiction of that person. The clerk of the court granting the in- junction shall, when requested by any other court in which enforcement of the injunction is sought, transmit promptly to the other court a certified copy of all the papers in the case on file in such clerk’s office. (Pub. L. 94–553, title I, § 101, Oct. 19, 1976, 90 Stat. 2584.) HISTORICAL AND REVISION NOTES HOUSE REPORT NO. 94–1476 Section 502(a) [subsec. (a) of this section] reasserts the discretionary power of courts to grant injunctions and restraining orders, whether ‘‘preliminary,’’ ‘‘tem- porary,’’ ‘‘interlocutory,’’ ‘‘permanent,’’ or ‘‘final,’’ to prevent or stop infringements of copyright. This power is made subject to the provisions of section 1498 of title 28 dealing with infringement actions against the United States. The latter reference in section 502(a) makes it clear that the bill would not permit the granting of an injunction against an infringement for which the Fed- eral Government is liable under section 1498. Under subsection (b), which is the counterpart of pro- visions in sections 112 and 113 of the present statute [sections 112 and 113 of former title 17], a copyright owner who has obtained an injunction in one State will be able to enforce it against a defendant located any- where else in the United States. § 503. Remedies for infringement: Impounding and disposition of infringing articles (a)(1) At any time while an action under this title is pending, the court may order the im- pounding, on such terms as it may deem reason- able— (A) of all copies or phonorecords claimed to have been made or used in violation of the ex- clusive right of the copyright owner; (B) of all plates, molds, matrices, masters, tapes, film negatives, or other articles by means of which such copies or phonorecords may be reproduced; and (C) of records documenting the manufacture, sale, or receipt of things involved in any such violation, provided that any records seized under this subparagraph shall be taken into the custody of the court. (2) For impoundments of records ordered under paragraph (1)(C), the court shall enter an appro- priate protective order with respect to discovery and use of any records or information that has Page 169 TITLE 17—COPYRIGHTS § 504 been impounded. The protective order shall pro- vide for appropriate procedures to ensure that confidential, private, proprietary, or privileged information contained in such records is not im- properly disclosed or used. (3) The relevant provisions of paragraphs (2) through (11) of section 34(d) of the Trademark Act (15 U.S.C. 1116(d)(2) through (11)) shall ex- tend to any impoundment of records ordered under paragraph (1)(C) that is based upon an ex parte application, notwithstanding the provi- sions of rule 65 of the Federal Rules of Civil Pro- cedure. Any references in paragraphs (2) through (11) of section 34(d) of the Trademark Act to sec- tion 32 of such Act shall be read as references to section 501 of this title, and references to use of a counterfeit mark in connection with the sale, offering for sale, or distribution of goods or serv- ices shall be read as references to infringement of a copyright. (b) As part of a final judgment or decree, the court may order the destruction or other reason- able disposition of all copies or phonorecords found to have been made or used in violation of the copyright owner’s exclusive rights, and of all plates, molds, matrices, masters, tapes, film negatives, or other articles by means of which such copies or phonorecords may be reproduced. (Pub. L. 94–553, title I, § 101, Oct. 19, 1976, 90 Stat. 2585; Pub. L. 110–403, title I, § 102(a), Oct. 13, 2008, 122 Stat. 4258; Pub. L. 111–295, § 6(d), Dec. 9, 2010, 124 Stat. 3181.) HISTORICAL AND REVISION NOTES HOUSE REPORT NO. 94–1476 The two subsections of section 503 deal respectively with the courts’ power to impound allegedly infringing articles during the time an action is pending, and to order the destruction or other disposition of articles found to be infringing. In both cases the articles af- fected include ‘‘all copies or phonorecords’’ which are claimed or found ‘‘to have been made or used in viola- tion of the copyright owner’s exclusive rights,’’ and also ‘‘all plates, molds, matrices, masters, tapes, film negatives, or other articles by means of which such copies of phonorecords may be reproduced.’’ The alter- native phrase ‘‘made or used’’ in both subsections en- ables a court to deal as it sees fit with articles which, though reproduced and acquired lawfully, have been used for infringing purposes such as rentals, perform- ances, and displays. Articles may be impounded under subsection (a) ‘‘at any time while an action under this title is pending,’’ thus permitting seizures of articles alleged to be in- fringing as soon as suit has been filed and without waiting for an injunction. The same subsection empow- ers the court to order impounding ‘‘on such terms as it may deem reasonable.’’ The present Supreme Court rules with respect to seizure and impounding were issued even though there is no specific provision au- thorizing them in the copyright statute, and there ap- pears no need for including a special provision on the point in the bill. Under section 101(d) of the present statute [section 101(d) of former title 17], articles found to be infringing may be ordered to be delivered up for destruction. Sec- tion 503(b) of the bill would make this provision more flexible by giving the court discretion to order ‘‘de- struction or other reasonable disposition’’ of the arti- cles found to be infringing. Thus, as part of its final judgment or decree, the court could order the infring- ing articles sold, delivered to the plaintiff, or disposed of in some other way that would avoid needless waste and best serve the ends of justice. Editorial Notes REFERENCES IN TEXT The Trademark Act, referred to in subsec. (a)(3), probably means the Trademark Act of 1946, act July 5, 1946, ch. 540, 60 Stat. 427, also popularly known as the Lanham Act, which is classified generally to chapter 22 of Title 15, Commerce and Trade. Section 32 of the Act is classified to section 1114 of Title 15. For complete classification of this Act to the Code, see Short Title note set out under section 1051 of Title 15 and Tables. The Federal Rules of Civil Procedure, referred to in subsec. (a)(3), are set out in the Appendix to Title 28, Judiciary and Judicial Procedure. AMENDMENTS 2010—Subsec. (a)(1)(B). Pub. L. 111–295 substituted ‘‘copies or phonorecords’’ for ‘‘copies of phonorecords’’. 2008—Subsec. (a). Pub. L. 110–403 amended subsec. (a) generally. Prior to amendment, subsec. (a) read as fol- lows: ‘‘At any time while an action under this title is pending, the court may order the impounding, on such terms as it may deem reasonable, of all copies or phonorecords claimed to have been made or used in vio- lation of the copyright owner’s exclusive rights, and of all plates, molds, matrices, masters, tapes, film nega- tives, or other articles by means of which such copies or phonorecords may be reproduced.’’ § 504. Remedies for infringement: Damages and profits (a) IN GENERAL.—Except as otherwise provided by this title, an infringer of copyright is liable for either— (1) the copyright owner’s actual damages and any additional profits of the infringer, as provided by subsection (b); or (2) statutory damages, as provided by sub- section (c). (b) ACTUAL DAMAGES AND PROFITS.—The copy- right owner is entitled to recover the actual damages suffered by him or her as a result of the infringement, and any profits of the infringer that are attributable to the infringement and are not taken into account in computing the ac- tual damages. In establishing the infringer’s profits, the copyright owner is required to present proof only of the infringer’s gross rev- enue, and the infringer is required to prove his or her deductible expenses and the elements of profit attributable to factors other than the copyrighted work. (c) STATUTORY DAMAGES.— (1) Except as provided by clause (2) of this subsection, the copyright owner may elect, at any time before final judgment is rendered, to recover, instead of actual damages and profits, an award of statutory damages for all in- fringements involved in the action, with re- spect to any one work, for which any one in- fringer is liable individually, or for which any two or more infringers are liable jointly and severally, in a sum of not less than $750 or more than $30,000 as the court considers just. For the purposes of this subsection, all the parts of a compilation or derivative work con- stitute one work. (2) In a case where the copyright owner sus- tains the burden of proving, and the court finds, that infringement was committed will- fully, the court in its discretion may increase the award of statutory damages to a sum of not more than $150,000. In a case where the in-