If the assumption of facts was reversed, like in a motion for summary judgment, Null would’ve won handily. We’re just not at that phase of litigation yet. And I bet Russ is incompetent at discovery, both written and depo. What I wouldn’t give for a transcript and video of him sitting for a deposition and getting cross-examined…
It was my impression that Russ did not plead for actual damages, because he can’t prove much if any, but instead pleaded for only statutory malice damages, to get that ma$$ive 100-gf experience payout. That would mean he has a heightened standard of proof for deliberate bad acts by Jersh. And as pointed out, the timeline of events doesn’t match for any malice to be involved. Retroactively maliciously inducing infringement doesn’t make any sense, as malice generally speaking must be “aforethought,” as in going into a situation determined to do the legally wrong thing on purpose. And it’s not aforethought if you’re just laughing at an incompetent attempt to take down copyrighted works.
Giving up the safe harbor was a dumb move, but I agree with Null’s and counsel’s assessment that he’s got an 80/20 on the liability merits regardless. And even if we hit the 20%, it’s not in me to care all that much, because then Russ still has to argue damages. He can only get as much money as he can prove, and maybe removal of the two actually infringing posts—not his whole thread, and not the site in general.
That’s assuming that courts actually follow the law instead of getting all in their feelings, though, but this district court seemed pretty aware Russ was being emotionally manipulative with ‘facts’ unrelated to his claim.