It seems there has already been one similar case in Germany where an open source copyright violation occurred but no damages could be awarded. Specifically, a higher court overturned the damages permitted by a lower court.

(in German) https://www.cmshs-bloggt.de/gewerblicher-rechtsschutz/urhebe...

But crucially, in that case the infringer did not make money based on their infringement, and the actual infringement was minor. (Specifically, a university failed to provide a copy of the GPL license alongside a download of the software, which they offered free of charge.)