Steve Vondran , JD Supra; Factors that may support a finding of "willful copyright infringement"
"In copyright litigation, identifying the facts that may support a finding of willful infringement can be critical in any case, whether you are on the plaintiff or defense side. A willfulness finding may significantly increase the defendant's financial exposure, including the potential for enhanced statutory damages damages ($30,000-150,000), attorneys' fees, and injunctive relief. Just as important, where the infringement is carried out through a corporation, courts may examine whether company officers, directors, owners, or managers personally participated in, directed, authorized, or financially benefited from the infringing activity. For this reason, copyright plaintiffs should carefully evaluate evidence such as prior notice, cease-and-desist letters, continued use after warning, concealment, removal of copyright management information (17 U.S.C. 1202 claims), repeated infringement, and decision-maker involvement. These facts can help establish not only infringement but also whether the conduct was knowing, reckless, or intentional, which could lead to broader liability against the individuals behind the business. This is what we refer to as "officer and director copyright liability," which allows plaintiffs to name both individuals and their corporations notwithstanding the corporate veil!
Federal courts do not apply a single universal test for "willful infringement" in copyright cases. However, courts repeatedly identify certain facts and circumstances that support a finding that infringement was knowing, intentional, reckless, or undertaken with willful blindness. This blog provides some general concepts to consider in your next infringement matter."
