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Willful Copyright Infringement: In Search Of A Standard, Jeffrey M. Thomas

Washington Law Review

The Copyright Act of 1976 provides for an increase in statutory damages where copyright infringement is willful. Because it is undefined in the Act, the meaning of willfulness is left to judicial interpretation. Courts have disagreed on the proper definition of willfulness and adopted tests that are vague and sometimes inconsistent with the Act's statutory damages provision. This Comment proposes an alternative to the present definitions and tests, and suggests that courts adapt a two-part willfulness test from the patent law test, which requires knowledge and an affirmative duty to investigate.