In a copyright action, where the defendant is unlikely to prevail on the merits, a cost-effective strategy may be found in the offer of judgment provision of the Federal Rules and the costs and attorneys’ fees section of the Copyright Act.
Before even answering or moving to dismiss, making an offer of judgment under Fed. R. Civ. Pro. Rule 68 can dramatically alter the outcome of a copyright litigation in defendant’s favor. If the offer is accepted, the case is over quickly, for an amount of money the defendant deems tolerable.[1]� The more interesting result, however, occurs when the offer is rejected (as it is quite likely to be). Under the rule, if a defendant offers to have judgment entered against it in a specified amount, and the plaintiff’s eventual judgment after trial is less than that amount, the plaintiff is liable for all “costs incurred” by the defendant after the making of the offer.[2]�
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