Actual Damages in JMRI Case

[Alexander Terekhov]

http://jmri.sourceforge.net/k/docket/352.pdf

"Plaintiff’s Actual Damages

This award of actual damages looks at the facts from the point of view
of the copyright owner as it undertakes to compensate the owner for any
harm he suffered by reason of the infringer’s illegal act. See generally
Fitzgerald Publ’g Co. v. Baylor Publ’g Co., 807 F.2d 1110, 1118 (2nd
Cir. 1986); Walker v. Forbes, Inc., 28 F.3d 409, 412 (4th Cir. 1994).
The Ninth Circuit has defined the phrase “actual damages” as “the extent
to which the market value of a copyrighted work has been injured or
destroyed by an infringement.” Mackie v. Rieser, 296 F.3d 909, 917 (9th
Cir. 2002) (quoting Frank Music Corp. v. Metro Goldwyn-Mayer, 772 F.2d
505, 512 (9th Cir. 1985)). To determine the work’s “market value” at the
time of the infringement, the Ninth Circuit has endorsed a hypothetical
approach which asks “what a willing buyer would have been reasonably
required to pay to a willing seller for [the owner’s] work.” Id.; see
also Polar Bear Productions, Inc. v. Timex Corp., 384 F.3d 700, 708 (9th
Cir. 2004). This is an objective approach, and “hurt feelings” has no
place in this calculus. Mackie v. Rieser, 296 F.3d at 917.

Here, it is undisputed that Plaintiff’s Decoder Definition Files are,
and always have been, available for free for download on
sourceforge.net. Katzer Decl. ¶ 15. Therefore, under the current law in
this Circuit, the Decoder Definition Files have no market value. Since
the Decoder Definition Files have no market value, Plaintiff has not
suffered any actual damages."

He he.

regards,
alexander.

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