August 25, 2004

JibJab Lawsuit Outcome and Creating A Copyright Lawsuit Downside

I'm a bit late to the analysis party on the JibJab lawsuit win. What I find notable myself is that this is a rare instance where there has been a downside to bringing even threatening (clarified per Ed Felten's comment) a copyright lawsuit.

The typical mathematics, is that when a copyright lawsuit is brought, the worst thing that can happen is that the plaintiff is in the same position they started. That is, they're ordinarily against some use, they try a lawsuit, if they win, they've stopped it, if they lose, they're no worse off than if they did nothing. So this favors rolling the legal dice. Of course, lawsuits cost money, but to a large corporation, that's just a cost of doing business.

Now, the above outcomes are vastly simplified. They're always the possibility of "bad publicity". Or losing so badly that the defendant recovers legal fees (e.g. Barbie satire).

But the outcome here, where the song "This Land Is Your Land", is discovered to arguably be in the public domain, is a rare outcome where a plaintiff now might reasonably wish they'd never brought the case in the first place.

That's the broader, "precedent"-like, significance here. Where the next intimidation lawsuit being considered, might in fact not happen, for fear of dice-rolling result, by the plaintiff.

By Seth Finkelstein | posted in copyblight | on August 25, 2004 11:59 PM (Infothought permalink) | Followups
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Actually, Ludlow didn't file a lawsuit. They just made serious threats, which allowed JibJab to file a lawsuit seeking declaratory judgment.

This makes the JibJab situation an even better example, since it shows that serious threats, even without a lawsuit, can have a big downside.

Posted by: Ed Felten at August 26, 2004 08:43 AM