Germany does not appear to have statutory damages the way the US does, but they have something else that could work here. They seem to have three kinds of damages possible [1].
1. Lost profits due to the infringement.
2. The profits the infringer made from the infringement.
3. The amount the infringer would have had to pay to license the work to use the way they did it if they had requested such a license from the copyright owner.
The first one would likely not apply to something that is solely licensed under GPL, but the other two might, especially #2.
I'm curious how #3 is determined.
There is something similar in the US for patent infringement damages. That involves the court trying to determine what would have happened in a hypothetical negotiation if the patent owner had been willing to license the patent and the infringer had wanted to license the patent.
That can work because usually with patents you can compare to other patent in the same or related field that are about as valuable and have been licensed out. I don't think that there are a lot of open source world class chess engines that are dual licensed for proprietary use that a court could use for comparison.
Case in point, the awards given against people who pirate something like a movie which are completely detached from the actual damage caused by the piracy.
Yeah, that's what "statutory damages" means. In the US, if you have registered your copyright (distinct from the automatic copyright that attaches at creation), you are entitled to damages up to $150,000 per infringement. If 1,000 people can be proven to have downloaded that movie from you, that would be an unwelcome bill indeed. If 10,000, well then now you're starting to talk about real money.
Statutory damages are per work infringed, not per infringement.
They are normally from $750-30000 per work infringed.
The lower limit can be lowered to $200 if the defendant can prove that they were an innocent infringer (they were not aware and had no reason to believe they were infringing). The defendant has the burden of proof for this.
The upper limit can be raised to $150000 if the infringement is "willful". The statute does not define "willful". Courts have taken it to mean reckless disregard. The defendant knew they were infringing and did it anyway.
The jury decides where in the range you end up, and they certainly might take into account the magnitude of your infringement so 10000 downloads might cost you more than 1000 by convincing the jury to choose somewhere high from the range, but the cap on the total will be $30k (or $150k if it was willful).
Note that this means that willfully distributing 10000000 copies of one movies is going to be a lot better for the defendant than distributing a single copy each of 300 different movies, if the plaintiff elects to ask for statutory damages.
The 10000000 copies of one movie is just one work infringed, so you are looking at $150000 worst case.
The single copy each of 300 movies is 300 works infringed, so best case (assuming you are not an innocent infringer) is the minimal amount of statutory damages per work, $750, times 300 works = $225000.
(But remember that the plaintiff gets to choose between statutory damages and actual damages. If you've distribute 10000000 copies of their movie, they'll probably go for actual damages which could be considerably more than $150000!)
It seems there has already been one similar case in Germany where an open source copyright violation occurred but no damages could be awarded. Specifically, a higher court overturned the damages permitted by a lower court.
But crucially, in that case the infringer did not make money based on their infringement, and the actual infringement was minor. (Specifically, a university failed to provide a copy of the GPL license alongside a download of the software, which they offered free of charge.)
