On the other hand, if ChessBase is found (and ruled) to have distributed software illegally, the company and its executives might have another problem. I don't know the specifics of German law, but I believe that distributing software (or any product) illegally is actually a criminal offense (no longer a civil dispute). That could (theoretically/eventually) lead to criminal prosecution and who knows .. jail time?
There was only one legal way for ChessBase to do what it did (rebrand stockfish without attribution), and that was to acquire a (non-gpl) license from all the stockfish developers. That was almost certainly possible, for enough money. Stockfish developers could arguably sue for those lost licensing fees.
Presumably it's important to establish damages (at least in a US jurisdiction) because otherwise they wouldn't have standing to bring a lawsuit.
https://en.wikipedia.org/wiki/Damages#Punitive_damages_(non-...
In the US there are statutory damages for copyright infringement ($50k per act of infringement, tripled if wilful) so you're entitled to that much without having to prove any actual damages.
(Part of the point of having a legal fee schedule is, I suppose, to put a damper on the prices of legal help, because, like in medicine, the demand is otherwise extremely inelastic: when you need it, you really need it. That does not appear to work. I wonder if there is an approach that would work.)
Secondly, there is a morality clause with regards to attorney fees, so usurious rates like some US attorneys charge are harder to achieve.
This doesn't mean German attorneys are cheap. It's just not quite as out of control as the US legal system. (Though attorney's professional bodies are obviously lobbying to make it easier to charge more)
The legal fee schedule does put a damper on attorney work, and more importantly, makes it somewhat easier to predict costs should you need an attorney. If it's enough of a damper is open to interpretation. I
Of course, if there's one thing that lawyers are less likely to do than cap the earnings of their profession, it's to devalue it entirely.
You could also increase supply by reducing the level of qualification needed to become a lawyer. Increased competition would drive prices down. That too is highly unlikely.
Also, in Australia, you'll only recover a portion in accordance with scale limits (party-party costs). Indemnity costs (100% recovery) is rarely awarded. What's the case in the US?
1. Lost profits due to the infringement.
2. The profits the infringer made from the infringement.
3. The amount the infringer would have had to pay to license the work to use the way they did it if they had requested such a license from the copyright owner.
The first one would likely not apply to something that is solely licensed under GPL, but the other two might, especially #2.
I'm curious how #3 is determined.
There is something similar in the US for patent infringement damages. That involves the court trying to determine what would have happened in a hypothetical negotiation if the patent owner had been willing to license the patent and the infringer had wanted to license the patent.
That can work because usually with patents you can compare to other patent in the same or related field that are about as valuable and have been licensed out. I don't think that there are a lot of open source world class chess engines that are dual licensed for proprietary use that a court could use for comparison.
[1] https://www.lexology.com/library/detail.aspx?g=cef58d76-21a2...
They are normally from $750-30000 per work infringed.
The lower limit can be lowered to $200 if the defendant can prove that they were an innocent infringer (they were not aware and had no reason to believe they were infringing). The defendant has the burden of proof for this.
The upper limit can be raised to $150000 if the infringement is "willful". The statute does not define "willful". Courts have taken it to mean reckless disregard. The defendant knew they were infringing and did it anyway.
The jury decides where in the range you end up, and they certainly might take into account the magnitude of your infringement so 10000 downloads might cost you more than 1000 by convincing the jury to choose somewhere high from the range, but the cap on the total will be $30k (or $150k if it was willful).
Note that this means that willfully distributing 10000000 copies of one movies is going to be a lot better for the defendant than distributing a single copy each of 300 different movies, if the plaintiff elects to ask for statutory damages.
The 10000000 copies of one movie is just one work infringed, so you are looking at $150000 worst case.
The single copy each of 300 movies is 300 works infringed, so best case (assuming you are not an innocent infringer) is the minimal amount of statutory damages per work, $750, times 300 works = $225000.
(But remember that the plaintiff gets to choose between statutory damages and actual damages. If you've distribute 10000000 copies of their movie, they'll probably go for actual damages which could be considerably more than $150000!)
Too late to delete, but thanks for the tuneup.
(in German) https://www.cmshs-bloggt.de/gewerblicher-rechtsschutz/urhebe...
* I don't know what the opposite of a plain-tiff is
Complainant and Respondent