01-4090 Gonzales v. Transfer Technologies, Inc.

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“The fact that Transfer did not persist in its infringing activities after being sued is no doubt a point in its favor, but without amplification is not a strong one. The fact that a criminal does not persist in committing crimes after he’s indicted doesn’t argue strongly in his favor. The infringement was willful; and willful infringements involving small amounts of money cannot be adequately deterred (and remember ‘the need in particular circumstances to advance consideration of . . . deterrence’) without an award of attorneys’ fees. No one can prosecute a copyright suit for $3,000. The effect of the district court’s decision if universalized would be to allow minor infringements, though willful, to be committed with impunity, to be in effect privileged, immune from legal address. The smaller the damages, provided there is a real, and especially a willful, infringement, the stronger the case for an award of attorneys’ fees. … [W]e go so far as to suggest, by way of refinement of the Fogerty standard, that the prevailing party in a copyright case in which the monetary stakes are small should have a presumptive entitlement to an award of attorneys’ fees. The judge in this case may have had a good reason to find the presumption rebutted but this we cannot tell from his extremely brief discussion.”

Vacated and remanded.

Appeal from the United States District Court for the Northern District of Illinois, Kocoras, J., Posner, J.