(c) Remedies for Violations of Sections 1201 and 1202Civil Remedies. Section 1203 provides civil remedies for any person injured by a
violation of Section 1201 or 1202, including temporary and permanent injunctions (although
Section 1203(b)(1) contains a provision prohibiting injunctions that constitute prior restraints on
free speech or the press protected under the First Amendment), impounding, actual damages and
any additional profits of the violator,^1398 statutory damages (in the amount of not less than $200
or more than $2,500 for each violation of Section 1201, and not less than $2,500 or more than
$25,000 for each violation of Section 1202), costs and attorneys fees, and an order for the
remedial modification or the destruction of any device or product involved in the violation.
Under Section 1203(c)(4), damages may be trebled by the court for repeated violations within a
three year period. Conversely, under Section 1203(c)(5), damages may be reduced or remitted
entirely if the violator proves that it was not aware and had no reason to believe that its acts
constituted a violation.
Criminal Penalties. Section 1204 provides for criminal penalties for the willful violation
of Sections 1201 or 1202 for purposes of commercial advantage or private financial gain.
Penalties include fines up to $1,000,000 and imprisonment for up to 10 years for repeated
offenses.^1399
(1) Statutory Damages and Disgorgement of Profits for
Violations of Section 1201
(i) Sony Computer Entertainment America v. FilipiakIn Sony Computer Entertainment America, Inc. v. Filipiak,^1400 the court addressed the
standard for computing statutory damages for a violation of the anti-circumvention provisions of
the DMCA. The defendant Filipiak sold modification chips for the Sony PlayStation 2 console
that circumvented the technological copyright protection measures in PlayStation consoles and
allowed users to play unauthorized and illegal copies of PlayStation video games. The court
found that Filipiak knew at the time he was selling them that the sale of the mod chips was
illegal under the DMCA. Filipiak signed an agreement with SCEA that he would stop selling the
(^1398) Section 1203(c) provides:
(1) In general.—Except as otherwise provided in this title, a person committing a violation of section 1201 or
1202 is liable for either –
(A) the actual damages and any additional profits of the violator, as provided in paragraph (2), or
(B) statutory damages, as provided in paragraph (3).
(2) Actual damages.—The court shall award to the complaining party the actual damages suffered by the party
as a result of the violation, and any profits of the violator that are attributable to the violation and are not taken
into account in computing the actual damages, if the complaining party elects such damages at any time before
final judgment is entered.
(^1399) The Digital Future Coalition has criticized Section 1202 as too draconian, in that it would impose civil penalties
even in cases where no specific intent to infringe or promote infringement can be shown. “In other words, even
someone who alters digital identifiers casually could be liable for a minimum of $2,500 in damages plus costs
and attorney’s fees.” See position paper of the DFC at http://www.ari.net/dfc/docs/stwip.htm, p. 3.
(^1400) 406 F. Supp. 2d 1068 (N.D. Cal. 2005).