We've written tons of stuff on the ridiculousness of statutory damages for copyright infringement -- which can put damages for a single infringement at up to $150,000 (for willful infringement). When you're talking about a $0.99 song, that seems completely out of line. The reason for statutory damages (supposedly) is that figuring out actual damages is simply too difficult, so a statutory range lets you ignore any discussion of having to prove real damages. In most copyright lawsuits, plaintiffs automatically take the statutory damages rates. It's pretty rare for anyone to opt-out. However, opting out is exactly what Oracle has done
in its ongoing lawsuit against Google. And it did this despite the judge ridiculing the company for the decision. From Rachel King at ZDNet:
When Alsup heard Jacobs say this, he warned that if Oracle goes down this path, they might not win anything at all, adding that it is the “height of ridiculousness” to think that Oracle could claim “hundreds of millions” of dollars for nine lines of code.
“The law can’t operate that way,” Alsup said. “In my mind, you’re making a mistake.”
In a later discussion on Friday morning, David Boies, also representing Oracle, tried to defend this strategy, arguing that the burden of proof is on Google here — not Oracle.
“What we are saying is once you proved infringement, we think under the law we have claim for infringer’s profit case,” Boies asserted.
The only thing I can figure here is that Oracle is doing this just to be a pest. Even if it does eventually win on the copyright issue (still an open question given the judge needing to rule on the copyrightability of APIs), it's not going to get that much money either way. The $150,000 statutory damages numbers are pocket change for either company, but as the judge made clear, in all likelihood it would get less (or nothing) if it tries to get "infringer's profits," because the contribution of the code in question is so minimal. However, it is possible that the fight over what those "profits" might be will simply prolong the case... and the expense of the case. So perhaps this is just a strategy by Oracle to drag things out? Maybe its lawyers are hoping that will make Google want to settle? Other than that, I'm with the judge in being a bit perplexed by the reasoning here.