Copyright Infringement Notice Letter from PicRights

How Likely is a Lawsuit?

Engagement through a lawyer or a lawsuit from PicRights is highly unlikely due to significant differences between Swiss and U.S. legal systems.

• Attorney Costs
  In Germany, Austria, and Switzerland, the prevailing party in a lawsuit typically bears all legal costs, including those of the opposing party. In the U.S., even the winning party must cover their own legal expenses, including forensic costs during discovery. This discrepancy contributes to Germany being ranked as the most litigious country in the world by the European American Chamber of Commerce, with 123 lawsuits per 1000 people, while the U.S. is not even close to that figure. Despite common misconceptions, the U.S. is not the country with the most lawsuits exactly for that reason. Lawsuits in the United States are astronomically expensive, and Americans generally prefer to avoid them.
  While a simple copyright lawsuit in Switzerland might cost between $500 and $1500, the same case in the U.S. could range from $5000 to $15,000 for initial engagement and potentially reach a million dollars in total. For instance, my last lawsuit, involving only a few exchanges with a lawyer, cost around $96,000. In California, even a simple consultation can run into thousands of dollars. Therefore, pursuing legal actions in the U.S. would be financially impractical for PicRights, especially given the small amounts they seem to seek.
• eDiscovery
  Additionally, the differences in legal procedures between Switzerland and the U.S. pose significant challenges. The U.S. legal system includes eDiscovery, where forensic experts access and analyze data from the plaintiff’s and defendant’s devices. This includes computers, cloud databases, and emails to verify the authenticity of claims. In a lawsuit, a U.S. forensic expert would need to travel to Switzerland to examine the copyright holder’s data, proving the creation and ownership of the image in question. If any data has been deleted or manipulated, the plaintiff would immediately lose the case. Switzerland lacks a comparable process, creating potential issues for Swiss entities unfamiliar with such procedures.
• Counterclaim
  In the U.S., a countersuit is almost automatically filed against the plaintiff in any lawsuit. The defendant typically seeks leverage and may claim damages. Ultimately, a jury would decide whether the evidence and damages support or refute the plaintiff’s claims. If the defendant can demonstrate that PicRights’ copyright infringement claims are merely a business model with no real damage, they could demand punitive damages up to several million dollars. Key witnesses, such as the CEO, could be required to testify, and any fraudulent activity could lead to criminal charges, potentially resulting in the CEO’s arrest before returning to Switzerland.
• Dirty Hands Doctrine
  Also known as the “Unclean Hands Doctrine,” this principle states that a party seeking relief must not have engaged in unethical, illegal, or bad faith conduct concerning the subject of their claim. If the plaintiff has participated in wrongful behavior, the court may deny them relief. This doctrine is not recognized in German-speaking countries, however is often used by U.S. attorneys as leverage in counterclaims.
• Fraud and Misrepresentation
  Another critical aspect is “Fraud and Misrepresentation”. If the plaintiff has gained an advantage through fraudulent actions or misrepresentation, it can be grounds for dismissing the case or for the defendant to file a counterclaim. This is crucial for the Swiss company to be aware of if they aim to succeed in their claim.
• In Pari Delicto
  Lastly, the doctrine of “In Pari Delicto” must be considered. This doctrine prevents a plaintiff who has engaged in wrongdoing from recovering damages for the consequences of that wrongdoing. If both parties are equally at fault, the court will leave them as they are. Given PicRights’ approach to their claim, it’s likely that their conduct could be scrutinized and used against them, potentially rendering their notifications and claims invalid.