ABANDONWRE... How Would the Courts Handle It?

[Billy_Blaze]

It seems that most legal enforcement against site operators of abandonware (old software out of print but technically piracy) arises out of copyright holders sending
cease-and-desist letters taking down the infringing content.

But what if a site operator was taken to court over this issue, how would you think a judge would settle the abandonware issue once and for all? SCOTUS notwithstanding.

In theory, copyright holders can sue for either "actual damages' or "statutory damages."

One example of persuing "actual damages" would be that the plaintiff (copyright holder) could prove actual profits were lost due to infringement.

But the one I want to focus on is "statutory damages." A little excerpt from this article explains it... http://www.nolo.com/legal-encyclopedia/ ... mined.html

"In many copyright cases, both actual damages and profits are difficult to prove. For that reason, the Copyright Act provides for statutory damages—that is, damages set by law. However, only a person who has registered a work with the U.S. Copyright Office before the infringement (or within three months of publication) may receive statutory damages. Such a plaintiff in an infringement action may opt for either actual damages (and the infringer’s profits, if appropriate) or statutory damages, but not both.

For infringements that can’t clearly be proven as either innocent or willful, statutory damages may be from $750 to $30,000 per infringement depending on the circumstances. The amount will depend on the seriousness of the infringing act and the financial worth of the infringer. On the other hand, an innocent infringer may have to pay as little as $200, while an intentional infringer may have to pay as much as $150,000 for a single infringement of one work."

I have a theory on how this case could get settled, but want your opinion aswell.



Let's take this scenario

The Judge actually rules against copyright holders and the rational being this.

JUDGE: Although you (copyright holder) might have more latitude in pursuing statutory damages when you can't prove loss of revenue from piracy, but not only can you not prove
at all that this infringment results in any loss of revenue from the allege infringed software, but YOU actually prove that the software has no commercial value by your own negelect of NOT publishing it on the market for 15 years. So, my question is HOW can you sue for any damages when your software doesn't generate any monetary value?"




But let's say the court rules in favor of the plaintiff" Can a judge actually rule that the site operators of abandonware's actions were actually innocent, even though they knew that
distributing abandonware was illegal on the basis of, even tough they knew it willful legal infringement but it actually wasn't willful monetary infingement.

I Like your guys opinions this!

THANKS!

[DOSGuy]

I think you'd have to commit largescale infringement before anyone would bother to take you to court. They often don't need to. All any copyright holder has to do is send a DMCA takedown request to your webhost and your site gets taken down. Our webhost is American, so that's all it would take to shut us down.

Even though you might prevail if you defended yourself in court, why risk it? You can avoid the whole nightmare by simply obeying the law.

Ultimately, though, the plaintiff doesn't have to be selling the infringed product to be entitled to damages. If you made any money off of their property, they're entitled to it. The court will attempt to determine how much money you made, and then throw punitive damages on top of that.