used a monthly licensing fee as the basis for his valuations.” Finally, the figure the court adopted was near the center of the range supported by the evidence. Id. at 534-35 (footnotes omitted). The evidence presented by Oracle provides a much more speculative basis for calculating hypothetical-license damages than the evidence in Polar Bear, Wall Data, and Jarvis. Although a copyright plaintiff need not demonstrate that it would have reached a licensing agreement with the infringer or present evidence of “benchmark” agreements in order to recover hypothetical-license damages, it may be difficult for a plaintiff to establish the amount of such damages without undue speculation in the absence of such evidence. Cf. Getaped.Com, Inc. v. Cangemi, 188 F.Supp.2d 398, 405-06 (S.D.N.Y.2002) (<HOLDING>). Here, because Oracle has no history of
recognizing the difficulty of calculating damages but not finding the task impossible holding that circumstantial evidence was sufficient to show that a method step was carried out by the direct infringer even in the absence of direct evidence for direct infringer recognizing the difficulty of determining a nonspeculative hypotheticallicense damages amount when the infringer is a direct competitor holding that competitor could seek only injunction under fdutpa not damages recognizing that courts and commentators have had difficulty determining the meaning of good faith in the definition of fair consideration 