It is also of interest that in a later ruling on costs
awarded $91,765.28 in legal fees. To a large extent this was because
there was an attempt to extent rights beyond what was avaiable in
copyrights, and a recognition that the defendant in such cases is often
at a disadvantage. "When the prevailing party is the defendant, who by
definition receives not a small award but no award, the presumption in
favor of awarding fees is very strong. See Diamond Star Building Corp.
v. Freed, 30 F.3d 503, 506 (4th Cir. 1994). For without the prospect of
such an award, the party might be forced into a nuisance settlement or
deterred altogether from enforcing his rights.
I want to just note -- I'm not a lawyer of any kind, but I believe in
a number of circumstances there are times in which such sorts of
counter-suits, getting legal fees back, etc., are NOT guaranteed, and
I'm pretty sure that defenses of "fair use" generally don't get you
that ("fair use" is what you use in your defense -- it is not asserted
as an offensive "right" you can claim is infringed in current US
copyright law). At least, that's what I took away from Lessig's book,
_Free Culture_, which makes the argument in part that nuisance
settlements are a very common way for unreasonable copyright claims to
be threatened and enforced against clear fair use activities (you can
read it online if you are interested in what I am talking about -- see
the section on the kid who got sued by the RIAA just for writing a
better Windows networking client).
Which is just to say -- at the moment, you can't rely on the threat of
counter-suit and so forth to necessarily deter lawsuits, as I
understand it. (Personally I think this is one of the MAJOR problems
with current copyright law -- it makes defending principles punitively
expensive, and has gone too far to emphasize the "monopoly" aspect of
copyright law without remembering the "limited" part, but I'm hardly
the first to make such an observation).