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I think that's been their arguement from the very first one of these trials. I believe they make the arguement of 'potential' damages when a person is hosting a song on whatever P2P site is the flavor of the moment.
Based on that, for the time BoA tried to screw me (in violation of state commerce laws), I could have sued them into my early retirement. I could have used the $2k I dumped into them to invest in google. I also could have used that cash to invest in a few other things...so potentially I'm out of millions while that cash was held up for state courts to award back to me.
See how "potential" works? Potential should never be the grounds for anything, actual should be the grounds for actual compensation. Potential may work for WoW gold, but outside of games, screw that noise.