An order was handed down in the Southern District of NY in the Busybox case against one defendant, Westinghouse Digital Electronics. The defendant defaulted on the litigation by failing to answer discovery requests, because it was in the process of going out of business. The judge awarded statutory damages, attorneys fees, and injunctive relief.
Although the order characterizes the damages as “treble,” that was only true in the sense that the court awarded three times the upper limit of statutory damages in the absence of wilfulness. The better characterization is enhanced damages — a court can in its discretion award up to $150,000 per work in statutory damages if the infringement is wilful. This is not the same as triple actual damages that are available in some other contexts (like wilful patent infringement); the court did not make a finding of actual damages because the defendant failed to respond to discovery and thus never presented evidence to support calculation of actual damages.
Also, as described in footnote 39, absent the default, statutory damages might have been less because the plaintiff failed to timely register the copyright. Given that most software authors do not register their copyrights, this may often be a significant limitation in claims enforcing open source licenses.
The most interesting thing about this case is the issuance of the injunction. Also, to my knowledge, it is the first award of statutory damages for violation of an open source license. Jacobsen v. Katzer confirmed that a claim for violation of a license could be pled as a copyright infringement claim. With that as a given, statutory damages or injunction could be available in the appropriate circumstances.
Attorneys’ fees were also awarded, but that was because of the default.
