Ugh (re: the case as a whole), but at the same time, I can kind of understand the plaintiff’s point. Having your content “stolen” is always annoying, but when a competitor does it in a commercial context….that’s kind of a big no-no. So as much as I hate junk lawsuits, I’m not really that offended by the plaintiff’s decision to file this one.

BUT, ultimate liability really is not the issue here; the more relevant question (as you noted) was the value of the work; a/k/a damages. In any infringement case, you can’t just focus on whether the work was infringed, whether the work is very (or not very) creative, whether the copyright protection should be “thin” or thick, whether the use was fair, etc. Those points relate to liability, and they are worth spending time on IF the potential damages are substantial, but not when the likely damages are de minimus.

Instead, forget about liability and ask yourself — what is this work actually WORTH? $1 million or $100?

If the answer is: the work is not worth much (as is clearly the case here), then the defense strategy is different — forget about liability. Instead, make your best guess as to the value of the work, and then you make an IMMEDIATE Rule 68 Offer of Judgment for the full value of the work, PLUS some reasonable amount of fees/costs (if fees are available, which appears to be the case here since the Complaint says, surprisingly, the work was registered prior to infringement). The Rule 68 offer shifts the risk back to the plaintiff and when done correctly, it can result in the quick and relatively inexpensive termination of the case.

So for example, let’s say this “work” has an approximate max value of say $500 because that’s what a lawyer would have charged you to draft a non-identical disclaimer. The 6-page Complaint is hardly a complicated work of art, but IP lawyers think their time is valuable, so I can see someone claiming that $2,500 is a reasonable fee for drafting this thing (I would have charged less). Add to that the $400 federal court filing fee, and there’s your Offer of Judgment — $500 + $2,500 + $400 = $3,400.

Yes, under the facts of this case it’s outrageous for the defendant to pay $3,400 to settle a case when the work is realistically almost valueless, but that’s the cost of a stupid decision like copying your competitor’s work. As annoying as this is, a settlement of $3,400 is surely lower than what it cost to bring the Motion to Dismiss (which was unsuccessful). Of course, by moving to dismiss, the defendant has now caused the plaintiff to incur more fees which they *might* recover if they prevail on liability, thus making the settlement value even higher.

BUT, ultimate liability really is not the issue here; the more relevant question (as you noted) was the value of the work; a/k/a damages. In any infringement case, you can’t just focus on whether the work was infringed, whether the work is very (or not very) creative, whether the copyright protection should be “thin” or thick, whether the use was fair, etc. Those points relate to liability, and they are worth spending time on IF the potential damages are substantial, but not when the likely damages are de minimus.

Instead, forget about liability and ask yourself — what is this work actually WORTH? $1 million or $100?

If the answer is: the work is not worth much (as is clearly the case here), then the defense strategy is different — forget about liability. Instead, make your best guess as to the value of the work, and then you make an IMMEDIATE Rule 68 Offer of Judgment for the full value of the work, PLUS some reasonable amount of fees/costs (if fees are available, which appears to be the case here since the Complaint says, surprisingly, the work was registered prior to infringement). The Rule 68 offer shifts the risk back to the plaintiff and when done correctly, it can result in the quick and relatively inexpensive termination of the case.

So for example, let’s say this “work” has an approximate max value of say $500 because that’s what a lawyer would have charged you to draft a non-identical disclaimer. The 6-page Complaint is hardly a complicated work of art, but IP lawyers think their time is valuable, so I can see someone claiming that $2,500 is a reasonable fee for drafting this thing (I would have charged less). Add to that the $400 federal court filing fee, and there’s your Offer of Judgment — $500 + $2,500 + $400 = $3,400.

Yes, under the facts of this case it’s outrageous for the defendant to pay $3,400 to settle a case when the work is realistically almost valueless, but that’s the cost of a stupid decision like copying your competitor’s work. As annoying as this is, a settlement of $3,400 is surely lower than what it cost to bring the Motion to Dismiss (which was unsuccessful). Of course, by moving to dismiss, the defendant has now caused the plaintiff to incur more fees which they *might* recover if they prevail on liability, thus making the settlement value even higher.