Raising the Stakes in Copyright Litigation: The Availability of Punitive Damages

The threat of enhanced damages, particularly in the hands of a jury, can have a considerable effect influencing the strategic conduct of litigation. Assuming some merit to a claim — at least sufficient to withstand summary judgment — the possibility of a verdict doubled or trebled or otherwise multiplied to deter or punish perceived willful, malicious conduct, perhaps representing many times the plaintiff's actual damages or the defendants' profits, can indeed be something of a gun to the head. To some plaintiffs seeking to vindicate a perceived wrong, the prospect of punitive damages can, of course also be something akin to the brass ring, adding extra incentive spurring pursuit of a verdict to the very end, even in a case that might otherwise settle.