7. Even LOSING In Court Might Be Cheaper Than Settling With the Plaintiffs

If your case does end up in court, it is the judge or jury that gets to decide what the penalty should be, not the plaintiffs. The plaintiffs can chose to put on evidence and prove the actual damages that you cost them by downloading the file in question, or they can ask the judge to award an amount provided by law (known as "statutory damages") without having to prove how much the infringement actually cost them. Proving actual damages in cases such as these is an extraordinary difficult and expensive thing to do, which is why, in all the reported cases I have seen, the plaintiffs decided instead to request statutory damages. Remember, however, if the plaintiffs do decided to prove actual damages, they will likely argue that it is you who should bear the cost of the proof they had to put on.

As far as the law is concerned, there are three types of copyright infringement. Notice, however, how these three classes of infringement make more sense when you are talking about corporations or for-profit endeavors, rather than individuals:

  • 1. Innocent infringement: Infringer was not aware and had no reason to believe that his or her acts constituted an infringement of a copyright.

  • 1a. Innocent infringement by protected classes: Infringer was not aware and had no reason to believe that his or her acts constituted an infringement of copyright, the infringer believed and had reasonable grounds for believing that his or her use of the copyrighted work was a fair use, and the infringer was an agent/employee of a nonprofit educational institution, library or archives and acting in that capacity or some public broadcasting company employees.

  • 2. Regular infringement.

  • 3. Willful infringement: Infringement conducted by someone who knew or should have known at the time that the activity was infringing on a copyright.

Assuming the plaintiffs elect to pursue statutory damages, if the plaintiffs can prove that an infringement took place, then the range is category 2 (below).  If the plaintiffs can then prove the infringement was willful they can move the case to category 3.  On the other hand, if after the plaintiffs have proven the infringement occurred, the defendant can prove the infringement was innocent, the case is in category 1:

  • 1. Innocent infringement: $200 - $30,000

  • 1a. Innocent infringement by protected class: $0

  • 2. Regular infringement: $750 - $30,000

  • 3. Willful infringement: $750 - $150,000

All of which is to say, one option you have, even if the plaintiffs initiate an actual lawsuit in a court with jurisdiction, is to concede the infringement and spend your time making a presentation to the court as to why the court should award less than what the plaintiffs are asking for. I have seen letters from the plaintiffs stating that they believe juries are inclined to award $20,000 per infringement. It is up to you how much to credit that argument. All I can say is that it appears to be based on only one or two cases, which is not exactly a scientific sampling.

6. The Discovery Process