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- the legal framework for the creation of remixes;
- the relevance and scope of the "first sale doctrine" in the digital environment; and
- the appropriate calibration of statutory damages in the contexts of individual file sharers and secondary liability for large-scale infringement.
The White Paper recommends amending the 1976 Copyright Act to provide both more guidance and greater flexibility to courts in awarding statutory damages by incorporating a list of factors to consider when determining the amount of a statutory damages award. In addition, it advises changes to remove a bar to eligibility for the Act's "innocent infringer" provision, and to lessen the risk of excessive statutory damages in the context of non-willful secondary liability for online service providers. The report also notes that some concerns raised about damages levels in cases against individuals could be alleviated if Congress were to establish a small claims tribunal with caps on damages awards.
With respect to remixes and the first sale doctrine in the digital environment, the report concludes that the evidence has not established a need for changes to the 1976 Copyright Act at this time. The Task Force makes several recommendations, however, to make it easier for remixers to understand when a use is fair and to obtain licenses when they wish to do so. It also recommends the development of best practices by stakeholders to improve consumers' understanding of the terms of online transactions involving creative works. Finally, it notes the need to continue to monitor legal and marketplace developments to ensure that library lending and preservation concerns are addressed.