[ponderatul]

I always wanted to know how is the damage done determined ?

"U.S. authorities say Dotcom and three co-accused Megaupload executives cost film studios and record companies more than $500 million and generated more than $175 million by encouraging paying users to store and share copyrighted material."

Distributing copyrighted stuff is illegal, period. But the way those calculations are made worries me. Do they start from the presumption that if the movie wasn't uploaded on megaupload, some person would have bought tickets to that film ? Is that the underlying premise?

I mean as a consumer I could either buy the movie, or watch an illegal upload of it. Isn't that a false dichotomy?. I could just as well not watch it, if that illegal upload didn't exist, and as such I would not have costed the company one cent.

[franciscop]

It depends on the country! In Spain for instance it's totally legal as long as there is no commercial intention.

Both "distributing" and "copyrighted" are terms that some times have not such clear boundaries. Is giving your sibling a used DVD illegal? Is selling it to a 2nd hand store illegal? A book is clearly legal to resell, right? Then why wouldn't some digital material be? There is a whole industry interested in making you think that is illegal, so please don't spread FUD :)

[derekp7]

The word "copyright" implies the right to make copies. Copyright laws (in various jurisdictions) also include language regarding performance of a copyrighted work, but that is a separate issue.

Digital media is interesting, as when you receive a copy of it on a physical medium, it is basically unusable unless you make a copy of it (i.e., putting the disk in a computer and copying the contents to computer memory). So to enable people to actually use that copyrighted digital work, the copyright holder grants an end user the right to load (copy) the digital work into computer memory (via the shrink-wrapped license agreement) for the purpose of executing / watching / reading it. And of course typically things like computer programs are installed (copied) onto a computer's storage device, which the license also typically grants permission to do.

Now it could be written into copyright law that if the normal method of using a work is to copy it into working memory, or load it into storage on a computer, that the law would explicitly allow that (or, as an alternative, the courts could allow that via "fair use" doctrine). But instead, the law, courts, and copyright holders are perfectly fine with this ambiguous grey area so that they can reserve a number of rights via the shrink-wrap software license.

[slededit]

Transitory storage falls under fair use. This has been tested in court for things like internet caching.

[Retric]

That's a rather tenuous connection. EX: "Transitory storage" does not count as a copy.

You need to make a copy of a book on the back of your Retna to read it, however nobody calls that copying.

It's easy to argue that playing a DVD is not actually copping the DVD as at no point does a DVD player copy the full DVD. Without a durable copy it's no more copping than the back of your Retna.

[ben_w]

I recall there was a court case about that. A copy of a program in system memory was deemed non-infringement because it was necessary for use of the software, however (certain classes of) modified copies were unlawful. I believe this is the precedent used to take down cheating apps for (e.g.) World of Warcraft.

[xbkingx]

From what I understand, it usually comes down to whether copy protection mechanisms were circumvented in order to make the copy and whether the copy was transmitted to a nonlicense holder.

So, making an image of a DVD isn't illegal, but sending that image to someone that doesn't own a license is. But, ripping that disk to mp4 is illegal if any form of protection is in place, no matter how weak.

Of course, ripping to mp4 and then sending it to someone is double illegal, which makes it legal. I should mention now that IANAL.

[tzahola]

In Hungary, downloading is legal, uploading is not. This makes torrenting problematic, but they never go after torrent users. Also, there's a special "tax" on storage media (CD-R, DVD-R, USB sticks, HDD, etc.) which is supposedly used to compensate copyright holders via some obscure distribution mechanism (read: a big chunk is probably stolen somewhere down the line).

[franciscop]

Oh yeah, we call that the "canon digital" and it sucks. Goes to few rich artists and it's not even stolen since they just keep it legally.

It was specially ironic when I was a teenager with a music band, we recorded some CDs of our own music. We were paying extra for the CDs in case we were pirating, so this money went to the SGAE and the like for artists while we were of course the artists who had to pay more! Talk about abuse of power.

[gambiting]

In Poland it's the same - downloading pretty much anything for personal use is perfectly legal, only sharing isn't(so using Kim's service would have been 100% fine).

[xyzzyz]

Except of software -- downloading software is still illegal in Poland, even though it is legal to download books, music, movies etc. There's an explicit provision for this in the copyright law.

So, using Megaupload is completely legal in Poland as long as you don't download software, just operating it and uploading to it isn't.

[Moter8]

But don't the ads on megaupload make it illegal then? (For them of course)

[chrischen]

People paid for their service too. So they are making money directly off of users’ illegal actions like how

1) airbnb users illegally converting rooms into short term rentals 2) amazon helping people avoid sales tax 3) uber lyft allowing drivers to drive taxis without a taxi license

[jdmichal]

As for point (2), technically it's on the consumer to pay use tax on an item that they did not pay sales tax on. Amazon was operating in a perfectly normal manner; it's just that interstate sales like that weren't common before the internet. The laws are still trying to catch up.

https://en.wikipedia.org/wiki/Use_tax

https://en.wikipedia.org/wiki/Streamlined_Sales_Tax_Project

[nitrogen]

I thought mail-order catalogs were fairly common. How did they handle tax?

[btilly]

The exact same way that internet companies do. :-)

As much as states don't want you to think about it, the Constitutional issues were settled back in the 1800s. If you do business with a company from another state, that is interstate commerce and only the Federal government can make laws about it. So, very importantly, your state government can't.

However if the company and customer exist in the state, then state law can apply to both. So companies have to track and apply state sales tax only for states where they have a physical presence.

After that it is all down to what it means for a company to exist in a state. For example if Amazon owns a subsidiary named A2Z Development which is doing software development in California for Amazon, does Amazon have a presence in California?

[8ytecoder]

>> After that it is all down to what it means for a company to exist in a state. For example if Amazon owns a subsidiary named A2Z Development which is doing software development in California for Amazon, does Amazon have a presence in California?

It's called having a nexus - even a single employee counts as having nexus. I'm not sure about subsidiaries though.

[vkou]

> As much as states don't want you to think about it, the Constitutional issues were settled back in the 1800s. If you do business with a company from another state, that is interstate commerce and only the Federal government can make laws about it. So, very importantly, your state government can't.

That's because this leads to incredibly absurd conclusions, such as Amazon 'not doing business' in a state, despite selling billions of dollars worth of merchandise to it. I don't understand how people can claim this to be the case, with a straight face.

In fact, I would daresay say that Amazon.com selling things to residents of Montana means that it has a presence in the state, for the purposes of that transaction, moreso then it does for having an Montana office that employs 8 people who code for AWS.

[chrischen]

My point is that it's on the consumers to follow the laws, but in each of those cases the companies are implicitly benefitting from mass "illegal" activity from users.

[briandear]

“Illegally converting rooms..”

You mean two consenting adults agreeing for a price to exchange a service such as a room or a ride in a car?

Completely different than stealing the production of a movie company and giving it to others for free. Hotels don’t own Airbnb rooms and taxi companies don’t own Uber cars which means they only derive their right to a oligopoly via regulation— regulation that historically is as the result of mobsters or other similarly situated constituencies attempting to create artificial barriers to entry.

Why do people like you seem to love the nanny state? Why do taxis need “regulating?” Why can’t grown ups decide who they want to ride with? Why can’t owners of properties rent to people? How is renting to someone any different than having non-paid houseguests? On a practical level, it isn’t. If the concern is increased traffic in residential areas, then why aren’t houseguests regulated? If the concern is security, then why aren’t residents and owners required to undergo background screenings as a condition of buying property?

America is supposed to be about freedom, but it more closely resembles some totalitarian regulatory wet dream.

Taxi regulation is just a money grab. Health and safety is a ridiculous argument. Me driving my neighbor to the doctor is zero different than me driving a stranger to the post office.

“Hacker News..” LOL. Seems instead more like a bunch of old spinsters lamenting the failure of the temperance movement whilst clutching pearls over those youngsters playing jazz records and dancing the Lindy Hop without appropriate chaperones.

Dammit, we should be encouraging the pushing of limits, of testing boundaries and kicking dents in the status quo. We damned sure ought not be actually defending the status quo. Disrupt!

[megous]

> Completely different than stealing the production of a movie company and giving it to others for free.

Do you mean two consenting adults copying some files?

If you don't mind ignoring laws around taxis, etc. why a special case for copyright?

[Cthulhu_]

The main difference is scale; giving your sibling a used DVD is just a 1:1 exchange, uploading it to e.g. megaupload can potentially open it to millions of other people.

There are laws about digital resale though; there was an EU ruling that indicated reselling digital-only products is legal.

[franciscop]

These Spanish laws AFAIK are from the time where you would copy casettes and give them to your friends. The lawmakers recognized that spreading the culture in this way among your friends was more important than making this a crime. With internet there has been a lot of debate, but it is still pretty much the same. Though Spaniards are quite unhappy with American corporations trying to force their American laws on us and making us criminals while we do something perfectly legal stuff! (And also internally with the SGAE, but that is another topic).

[fwgwgwgch]

Can we use this sub thread to post our knowledge of country laws about this?

Don't worry USA you can continue on browsing ;)

[franciscop]

Sure! I'm actually quite interested. Now that I live in Japan it's basically the opposite of Spain, here it is one of the most strict countries.

[DavidNielsen]

Rob Reid did a funny 5min TED Talk on this called the 8 Billion dollar iPod: https://www.youtube.com/watch?v=GZadCj8O1-0

He used the same premise when he wrote the comedy sci-fi book Year Zero, the story of naive aliens accidentally pirating all of Earths music and the legal consequences thereof, i.e. owning the citizens of Earth literally all the money in the universe leading to the ruination of their delightfully hedonistic utopia. A quick and hilarious read.

[logfromblammo]

Maybe we should execute an international copyright convention that specifies that the public domain is only free for Earth people. We could own two entire universes someday.

[xbkingx]

Pffft Preemptive market inclusion never works. We tried with the 'World Series', and all we got was a few stray Canadians. Miss Universe? Still no aliens and we can't even get a Miss Antarctica.

<--- encoding subspace transmission --->

<--- encoding failed --->

<--- Begin message contents --->

From: Infiltrator 72a9

To: Glop Flirbstekker

Glorp, stop downloading that Earth music immediately. They've figured out a loophole in Protocol 3 that could make the Level 7 event on Stlafft look like a Level 2! I don't care how much you like Roy Orbison. Stop immediately!

<--- End message contents --->

[TallGuyShort]

It's absolutely a false dichotomy. I have wanted DRM-free digital copies of movies that I paid to see in theaters and paid to get the DVD. Where can I get a DRM-free copy? Illegally. I would pay for it, but it's not for sale. Many statutes of limitations ago, I pirated a lot of music that I would never have paid for otherwise. I actually went and bought a lot of it on CD because I discovered I liked it and wanted to own the original CD. In my case, piracy has caused no loss to movie studios because I've never pirated a movie when I had the faintest option of buying it legally, and was a net gain to record labels because I've bought music I wouldn't have even discovered without piracy. I'm sure the odd thing has slipped through that maybe I would have discovered and bought through some other channel eventually, and not everyone does this maybe, but I agree with you that the calculations are way off and presume too much.

[icebraining]

I don't know about this specific case, but in the US they often use statutory damages instead:

"the copyright owner may elect, at any time before final judgment is rendered, to recover, instead of actual damages and profits, an award of statutory damages for all infringements involved in the action, with respect to any one work, for which any one infringer is liable individually, or for which any two or more infringers are liable jointly and severally, in a sum of not less than $750 or more than $30,000 as the court considers just."

https://www.law.cornell.edu/uscode/text/17/504

This is how Thomas-Rasset was at one time convicted to pay almost $2M for having shared 24 songs on Kazaa: https://en.wikipedia.org/wiki/Capitol_Records,_Inc._v._Thoma...

[some_account]

America is always winning the craziness award in these threads, due to being ultra capitalistic with no regard to common sense.

[digi_owl]

With the added irony that they were late in signing the Bern convention on copyright (didn't happen until the 1980s).

[tzs]

We probably need a new kind of statutory damages geared to this kind of infringement. The current statutory damages are geared toward commercial infringement.

Note, though, that she had to work really hard to get damages that high. As noted in your quote, statutory damages fall in a range. She probably would have gotten near the low end of the possible range if she had not tried to destroy evidence, had not perjured herself in court, and had not tried to blame her children for the copyright infringement.

Note also that she could have avoided this by taking the very reasonable settlement offer the RIAA made before they sued her. She was offering for distribution 1702 copyrighted songs, and they asked for $5000. That's under $3/song.

When she refused and they sued, they only sued over 24 songs. Why only 24 instead of all 1702? I haven't seen anything that explains for sure why, but there are a couple plausible reasons.

First, 24 x $750 = $18000. That's enough to get them the $5000 they wanted, plus a little more to cover the expense of having to actually start a lawsuit to get it.

At this point, everyone in her life that is not a colossal moron should have been telling her to take that initial settlement offer, because when she loses in court the absolute minimum she loses is $18000, which is $12000 more than she could settle for.

Second, for each song that is included in the lawsuit there is paperwork to be dealt with. They will have to introduce into evidence proof that all the proper filings were done at the copyright office, and that they represent the copyright owners and have the right to sue. Each and every one of those can be challenged by the defendant. There's just no point if all they want is what they asked for originally ($5000 to cover 1702 songs) plus something for the extra expense of having to go to trial.

Note also that after the first couple of trials, which first led to a $200k award and then the $2 million award, the RIAA again offered a settlement: $25k. She refused.

Eventually more proceedings got it back down to $200k, and again the RIAA offered to settle for a lower amount, if she would make a video about copyright infringement. She refused.

[dmd]

On the other hand, if she had accepted any of those settlement, she would have been out that amount of money, whereas by not doing so, she hasn't paid a cent, choosing to file bankruptcy instead.

[benchaney]

They're completely made up. There is no practical way to measure the amount of revenue lost by copyright infringement, and big numbers sound good and drive fear and outrage.

[ska]

I suspect they use the same logic that police media relations tend to use in reporting "street value", etc. Something like assume the highest possible revenue outcome, then round up. If it doesn't immediately fail the giggle test, that's your number.

We saw the same thing with music downloads, the assumption that every one represented the loss of a full priced album purchase or whatever.

[posterboy]

The rather small claim of 500m probably accounts for that. I had a similar problem at a job: Eating the food that had to be thrown away was called stealing if not payed for. I argued I wouldn't pay that much under normal circumstances and just don't want to waste food, but the next day I found myself willing to pay in my shift for a snack at least while the food was still good, postponed it for a while because I didn't have the time and then even went the last stretch of the shift thinking the snack would be free if I just waited. It's the famous slippery slope.

On the other hand and more topical, after receiving a cease and desist letter and claims from a well known law firm I ignored them thinking I never directly payed for TV before and still indirectly do because advertisement is prised into the products I buy on the one hand, and because of bad availabilty I would have to pay a premium for DVDs which is not even in my budget nor my idea of my money's worth, but you might argue that I am just missing the incentive to work for it so there's indirect economic damage, as much as I hate to say that -- just playing devil's advocate. Ironically, if I had to work for it, I wouldn't have the time to binge watch as I did.

My biggest gripe is probably that media players are full of bugs, so it's unhygenic to load from unknown sources ...

[ballenf]

There's one other aspect to the damage calculation. It's admittedly even more subjective than the others in use, but in my opinion even more important.

It's the subjective devaluation in the market of the content. If goods with zero marginal costs tend towards being priced at zero content creators need to raise the marginal cost of their goods to be above zero. With digital goods, the only ways to do that is to attach risk to the act of copying or distributing and increasing the difficulty of finding the content.

Getting back to unauthorized copying of digital media, the cost could be calculated as the net reduction in perceived value of the good as a result of its easy availability.

In hard terms, rampant copying might mean that pricing sweet spot for DVDs or legal streaming is depressed and that reduction then becomes the "cost" of the piracy to creators.

[thaumasiotes]

This is true, but none of that reduction is attributable to a suable party, even one the size of megaupload.

[ballenf]

For sure. My point was just that it's the calculation that Hollywood studios should be thinking about internally when deciding how much spend on combatting piracy. At some point the expense becomes greater than the benefit. And I doubt they're so naive as to use the 1:1 calculation of each download being exactly equal to a lost ticket sale, except when it comes to press releases.

[toyg]

> Isn't that a false dichotomy?

It is, and it's been pointed out from the dawn of computer piracy. But the world runs on greed, not on logic.

[pmarreck]

Or you could just download a ton of movies because you're a collector of digital stuff, and simply never watch it.

[chrisbennet]

Obviously, once Megaupload was taken down, the subsequent jump in the injured parties revenues would indicate how much they were losing before. Oh wait, are you telling me there wasn’t a jump? /s

[liberte82]

You wouldn't download a car, would you?

[nsomaru]

If I could, I would. I'd love an open source electric car design that can be printed on home 3D printers. We're still a way aways from this, but it doesn't seem like the realm of complete fiction :)

[starshadowx2]

"You wouldn't shoot a policeman, and then steal his helmet. You wouldn't go to the toilet in his helmet and then send it to the policeman's grieving widow, and then steal it again."

https://www.youtube.com/watch?v=ALZZx1xmAzg

[raattgift]

tl;dr: damages are claimed and argued by one of the parties in a lawsuit, or the prosecutor in criminal actions; the other side can argue that the calculation is wrong.

In an adversarial system (in particular most systems that descend from English law), the claimant/plaintiff/prosecutor generally must claim a quantized liability at the start of proceedings, and then justify the quantum of liability. In some cases, some fraction (or even all) of the quantum may be subject to assessment by the court, which can consider the adversarial parties' pleadings and covering law (staute or case) and alter the quantum. In any event, if the defendant is not found liable, it very likely simply does not matter what the quantum of damages in the claim is (although a very high quantum can have an impact on the assessment of costs payable by the unsuccessful claimant in some circumstances, e.g. if a cheaper court cannot lawfully deal with such a large claim, or if there is over-reach in the face of something like an offer under England & Wales's Civil Procedure Rules (CPR) part 36).

The key point here is that the defending party will generally argue that it is not liable in the first place, and if it is liable then the quantum of damages is too high "for the following reasons...". If the court doesn't agree that the defendant is liable at all, then it usually does not deal with the question of damages, even if how they are calculated by the claimant looks a bit suspect. If the claimed damages are overstated in an outrageous way, many courts will take that into account, and that will not benefit the claimant.

In a case like this there likely will be litigation where Dotcom's litigation team will argue that the $500 and/or $175 million figure should be put to strict proof, and/or that it is unreasonably high (pointing to similar cases, for example). On the other hand, depending on the NZ court's rule on disclosure or discovery of evidence, that may expose them to having their books examined (at some cost) by the U.S. authorities.

> Distributing copyrighted stuff is illegal, period.

No; one may have a license from the copyright holder to distribute the material in question, there may be statutory license, or there may be defences against infringement claims in case law. Remember: there is copyright in everything that is produced from scratch by a human being in practically every jurisdiction in the world. I have copyright in this reply to you. You have copyright in the message I'm replying to. The sentence I quote above is a poor basis for you to raise a claim of copyright infringement since there is an implicit licensing, plausibly a mandatory licensing under HN TOS (since they necessarily made a copy and distributed one of those copies for me to read), a variety of defences based on concepts related to the U.S. doctrine of fair use, and local statute. You are free to liberally quote from this message in reply, and may do so entirely lawfully.

[logfromblammo]

In any case, the "lost sale" doctrine is always inherently flawed, because it presumes that those downloading have unlimited entertainment budgets. No one can spend more on copies of information property than they have in discretionary income, and thus the purchase of one copy precludes the purchase of another.

It would be easy enough to presume that everyone is always spending their entire entertainment budget, and a dearth of funds for legal purchases may be why they are obtaining illegal copies. By this reasoning, the damage done due to piracy is always zero. But that's just as clearly bunk.

Some people pirate so they can spend their money on something else--something they would not have otherwise purchased if they were compelled to spend money on the information copy they might have preferred. Thus the media company is damaged because someone spent money on something else they didn't strictly need. Even by this argument, the damages would have to be capped by calculating the total discretionary income of all illegal copyholders and summing them. IP addresses assigned to an ISP serving US residential customers could likely be associated with a number for the median discretionary household income in that census tract.

You can't reasonably say that a homeless person who illegally copied 80 GB of music files from a public library computer is costing the music industry $80 million in lost sales. That person has negative discretionary income. They wouldn't ordinarily buy music until after paying for food, utilities, and rent. You might be able to argue that having already copied the music, they won't buy it when they finally do have the money to do so, but that's not strictly true. A lot of pirates do "settle up", so to speak, for the works they enjoyed most when they finally do get some extra money, by buying things legally when they previously copied them illegally.

So the sky-high plaintiff's calculations involve a lot of assumptions and shortcuts, and a competent defense would surely be able to cut them down to more reasonable, if still practically unrecoverable, numbers. But the court has no need to review those arguments unless the defendant is found liable in some way. Perhaps examination could be triggered even without finding of liability if there were also a counterclaim that the mere magnitude of the accusation constitutes defamation? I am not a lawyer, so I wouldn't know.

[Blahah]

Just want to commend you on an outstanding comment. This kind of comment is why I keep coming back to HN. Careful thought and an intellectual commitment to relatively obscure aspects of a topic, that ultimately clarify the entire situation.

[raattgift]

While I agree with your first few paragraphs, and think that some of what you say could in principle be used in a skeleton argument mitigating against a large damages claim, it is unlikely that a downloader would be pursued as far as a formal claim for making a single copy, since the claimant is unlikely to recover all its costs even if it prevails in court. (Default judgments can be abused however; on the other hand it is probably more fruitful for sharp practice lawyers to pursue people who have downloaded something embarrassing with the threat of that being exposed on the claim form, even if there is no real intention to file the claim form to the court).

A downloader who has made lots and lots of downloads where the claimant has particularized the downloads and properly shown copyright in each them, might also escape with a low offer to settle, since the claimant still faces uncertainties if the defendant puts up a reasonable defence.

Instead, it is easier to aim for an uploader who has uploaded virtually uncountably many copies of a work. Statutory damages are often available in copyright law because if many many many copies are made of a work, it is hard to arrive at an exact quantum of damages, and few people want the courts to be burdened with assessing liability for each and every copy. Instead, statute often gives a "bulk" per-work figure which applies no matter how many copies are made, subject to conditions.

Faced with defending a claim in which one is alleged to be a serial uploader of many many copies of a work, there is no recourse via the type of argument you make. Sure, individual downloads (that one has allegedly uploaded) might be excused as non-infringing for logic similar to the argument you made (or more reliably, by an argument based in fair use or an equivalent, or some statutory exception). However, if there are still many downloads not so excused, the full statutory damages might still be sought and granted by the court.

An additional complication here is that the Dotcom matter is cross-jurisdictional and engages multiple aspects of the law. It is possible that the U.S. authorities sought N.Z. legal advice on what money amounts to use in pleadings, but it is equally possible that they have taken figures as they were made in U.S. proceedings, and can only justify them on the basis that they were made by some third party (and presumably should be answered in court by Dotcom, should he appear, which is at least one facet in the extradition action). A large figure also presumably justifies the ongoing costs the U.S. is incurring in trying to secure Dotcom's extradition, and whoever is making decisions in e.g. the State Department is happy with the $500 million figure ("Dotcom's REALLY bad, we should go after him still!"). On the other hand, extraditions for much lower-level criminals are frequently aggressively and expensively pursued by publicly-funded authorities.

> counterclaim ... accusation constitutes defamation

Statements made during the course of judicial proceedings almost always have strongly qualified -- or even absolute -- privilege in the face of defamation claims. It is hard to envisage any situation in which a court filing could be the basis of a successful defamation claim, unless its contents were overwhelmingly unrelated to the matter of the claim itself. A party can allege that the other party is engaged in abuse of process or perjury, however, and leave it up to the trial court to decide the matter. Such an allegation must be accompanied by credible evidence, however, and the remedies tend to be proportional (up to striking out the offending party's claim or defence, with consequent liability for the other party's costs, but almost certainly not beyond that maximum).

If the sky-high claim form by a studio with copyright in, say, A Random Santa Movie were to also state that the defendant in a copyright infringement claim involving that movie also dresses up as Santa in order to abuse children and elves, then the studio could lose a defamation claim, for instance. However, if the allegation is that the defendant is a serial uploader of Santa-themed movies, that would not be actionable even if the claimant fails to prove that even one copy of A Random Santa Movie had ever been uploaded by the defendant.

In the law of England and Wales there are examples such as Seaman v Netherclift (1876) 2 C.P.D. 53. (excerpts: http://swarb.co.uk/seaman-v-netherclift-1876/ ) and, for comparison, Munster v Lamb (1883) 11 Q.B.D. 568. (excerpts: http://swarb.co.uk/munster-v-lamb-ca-1883/ ). There is other case law covering such matters, however, and the Defamation Act may be engaged in some phases of proceedings. Generally, however, using a court of law to make a deliberately malicious statement with the intent to harm a person's reputation is far from good practice, but probably won't incur outright liability if it is sufficiently true and germane to the proceedings at hand.

Other jurisdictions will have different rules.

[logfromblammo]

I was just trying to imagine a situation where the damage claims would have to be evaluated even if the defendant won, or a settlement was reached, or the case got dropped. If the courts only ever examined the proven-liable claims for accuracy in the amount of liability, wouldn't that tend to introduce biases?

Firstly, presupposing that the plaintiff's claims establish liability on the defendant, I think most people would tend to give more credence to their more subjective and speculative claims of magnitude. There would be a significant incentive to unreasonably overstate those claims, knowing that they will not be examined if you lose, and they will be more believable if you've already won part of the case. Furthermore, they anchor the settlement negotiations and the judgment amount arguments, so you'd want them as high as possible anyway. If there is no meaningful penalty for grossly overstating damages, everyone claims they lost a grillion dollars in lost wages, auto detailing, and quantum torment, then hopes the judge won't reduce it to less than a zillion dollars if the case gets that far. The plaintiff eats the defendant whole, and writes the remainder off as a loss, for their tax filings over the next 30 years.

Surely, there must be some penalty for putting a blatant and notorious ass-pull in your civil filing?

If your intent is to never go to trial no matter what, and a claim would only be examined if you were to win at trial, you could put whatever ridiculous crap you wanted in your initial filing, make careful press releases based upon the accusations, then settle, or continue indefinitely, or dismiss without prejudice. Then the damage would already be done. Certainly the courts don't act on claims that haven't been admitted or established at trial, but everyone else can. Most cases never get that far. What could we be missing if we never examine those claims?

[raattgift]

tl;dr: don't lie to a court; filing a claim is communicating to a court.

I don't think things are as bad as you think, and certainly not as bad as insufficient access to decent professional advocacy in the first place (due to pitifully underfunded systems of legal aid, poor systems of costs control for pre-trial and even pre-claim phases of litigation, and "gang-up" attacks where a private party pursuing a civil claim "inspires" a public prosecutor to make it difficult for the defendant to deal with that claim (if nothing else by having to split attention and resources with criminal law matters, including extradition)).

> imagine a situation where the damage claims would have to be evaluated even if the defendant won, or a settlement was reached, or the case got dropped

In private law (i.e., not a criminal or hybrid copyright case) this will happen only rarely in common law jurisdictions, and only if the judge suspects that one party or the other has been railroaded into an adverse outcome by sharp practice by the other party, and even then it will generally only happen on application (by a party to a court, including an appellate court).

Generally a settlement is considered a matter of contract between the private parties, and the court won't interfere with that unless it has reason to believe the contract is improper somehow. If there is a true meeting of the minds between the parties, the courts will be extremely reluctant to interfere absent a strong public interest. Likewise, withdrawing from a case is generally considered to be a voluntary action by the withdrawing party, and the courts again will generally avoid preventing that. Consider that in either case the court continuing proceedings will impose costs on all parties for the duration, and that ultimately one or more of the parties will be liable for those costs which would otherwise not have been incurred after the settlement agreement or unilateral withdrawal. That does not seem fair at first glance.

(Even in inquisitorial systems a party tends to have the right -- perhaps with agreement with the other parties -- to bring proceedings to a close earlier.)

> wouldn't that tend to introduce biases

Settlement law is an important area of knowledge for a litigation unit, and knowledge being power and settlements (in private law cases) being private agreements, it is unsurprising that the answer to that is "we don't really know because we don't have a full history to examine". Pitching a settlement figure vs the money value of a claim thus remains something of a dark art. Worse, since so few cases come to trial in places where the civil procedures encourage settlements, it is often hard for parties to guess whether their outcomes will be better or worse in accepting an offer vs proceeding to final judgement. It is even harder for parties to think about without expert advice when (as in the English system) costs follow the event. (I.e., when "loser pays", there is pressure on a party to think about how much that will be in the event it does not succeed at trial, especially when considering settlement offers early in proceedings.)

> knowing they will not be examined if you lose

That's not always the case. There can be cost consequences on a partially successful claimant, i.e., one who establishes liability but the court determines a much smaller money amount in damages may not be able to recover its costs from the defendant (and in some cases may have to contribute towards some of the defendant's costs!). This will strongly depend on the procedural rules of the trial court, and can vary e.g. between county court and high court in England & Wales almost as much as between an English court and a U.S. district court.

Moreover, there are money value thresholds which can determine the appropriate court, and if a higher value claim results in a more senior court deciding that its time has been wasted by a matter best tried in a more junior court, you can bet that the claimant may face a costs order that may wipe out any damages awarded.

> meaningful penalty for grossly overstating damages

Systems of private law tend to adapt to such things in due course.

(Indeed, if they do not do so on their own then that may provoke a legislature to try to fix things.)

In the U.K., for instance, overstating damages can lead to prosecution for fraud, and since the 2012 Zurich case [1] it is fairly clear that a trial judge is generally free to strike out the whole claim if a party dishonestly exaggerates a claim, the logic being that if a trial judge cannot trust that the claim is honest, then why should the judge trust any of the claimant's evidence.

Finally, if you do not intend to go to trial you should not file a claim! If you file a ridiculous claim for the purposes you suggest, you will find the defendant will quickly engage a no-win-no-fee (or similar) abuse-of-process litigator and it will cost you quite a bit of money to settle that (and even more if you are stupid enough to contest the matter). In general, it is not easy for a claimant to simply drop a claim (once filed) without the consent of the defendant. (As noted above, withdrawing unilaterally is permissible, but likely to be expensive!)

The details vary by jurisdiction, but in general private law courts are aware that there are abusive litigators and will usually try to disincent them very strongly. This fails sometimes in systems where one can "shop" for a judge on e.g. a subject-matter basis and where judges develop reputations as being particularly claimant-friendly. Specific examples, particularly in the U.S. district courts, have been discussed from time to time on HN... :-) However, one cannot hide such apparent failures of the system from appellate courts forever, and eventually unlucky abusive claimants can find their court-of-first-instance victories very expensively reversed or at least reopened.

(Although exceptionally uncommon, serially or outrageously abusive litigators in the UK -- and that includes legal persons who massively overstate damages -- may get added to this list: https://www.gov.uk/guidance/vexatious-litigants ; many ministries of justice in commonwealth jurisdictions maintain similar lists. The England&Wales list is almost exclusively litigants-in-person, since abusive companies and charities may be wound down).

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[1] Hayward v Zurich Insurance Company PLS [2016] UKSC 48 with an overview online here http://www.9goughsquare.co.uk/news/1195/

[logfromblammo]

> Finally, if you do not intend to go to trial you should not file a claim!

Should not? When only 1% of civil cases actually do go to trial, and the system is set up to encourage settlement, that sounds like an ethical argument.

There are plenty of lawyers out there that file their lawsuits primarily for the purposes of producing a settlement--patent trolls are an entire named subcategory of these.

There are plenty of litigants out there that never even intend to get to discovery, and you can just forget about the trial.

[some_account]

I would go as far to say that 99% of downloaded movies or games would not get bought if the person had to buy it.

Their numbers are pure fiction.

[ksk]

Extending that logic, open source advocates should be stopping people from pirating software. If they're not going to buy windows anyway, at-least a few of them would switch to Linux.

>I would go as far to say that 99% [..]

>Their numbers are pure fiction.

How ironic :)