The Copyright Act provides for disgorgement of an infringer’s profits attributable to infringement to the extent such profits are not taken into account in an award of damages to the plaintiff. Courts have long struggled with how to apportion profits so that only those attributable to infringement are disgorged. This article uses litigation between Oracle Inc and Google Inc to argue that parties should be given the opportunity to prove the existence or absence of a non-infringing alternative as a means of measuring profits subject to disgorgement. Contrary to the rulings of some courts, the use of NIAs is proper and indeed, depending on the facts, superior to alternative measures of disgorgement.
McGowan, David, The Apportionment Problem in Copyright Law (October 25, 2017).